Lord Hunt of Kings Heath: My Lords, the accounts were made available on the NHS pension websiteon 26 February 2007 and in printed format on27 February 2007. I declare an interest as a preserved member of the NHS pension scheme.

Lord Wakeham: My Lords, is the Minister aware that, as the last Secretary of State for energy, I agree entirely with his answer? It is not the reshaping of portfolios that is required but the right decisions? There are some very tricky decisions to be made, and it is about time that the Government got on and made some of them.

Lord Jenkin of Roding: My Lords, what isMr Higson's role?

Baroness Trumpington: My Lords, will the Minister kindly give a very short definition of Mr. Higson's role?

Lord Hunt of Kings Heath: Yes, my Lords, I pay tribute to the industry—the manufacturers and retailers—for the work that it has done with the FSA and the development of voluntary targets. The NCC survey showed that 35 per cent of economy products surveyed met the FSA salt targets compared with44 per cent of non-economy products. There is some way to go. We would like to see the gap closed between economy and other products, and those targets are due to be met by 2010. We are encouraging the industry to go faster, but we acknowledge the work that it has carried out so far.

Baroness Billingham: My Lords, following my noble friend's earlier reply, it is a great concern that at the moment there seems to be a stand-off betweenthe Food Standards Agency and the supermarkets on labelling. Will the Minister ensure that the simplest and most easily understood method of labellingfor all products in our food, whether salt or other ingredients, will be the final outcome of the deliberations that I know the Government are embarked on?

Lord Triesman: My Lords, a joint FCO and DfID team visited Chad from 19 to 24 February to assess the situation, andwe remain very concerned over the security and humanitarian position of the refugees and internally displaced Chadians. The team met with the Chadian Foreign Minister, Ahmat Allami, and raised our concerns over the deteriorating humanitarian situation in the east, due to cross-border offensives from Darfur and rising levels of inter-communal violence. We will continue to work with the UN and other partners to secure the best option for a deployment to Chad.

Baroness Walmsley: My Lords, once again, the Government have done things back to front. When we discussed the Bill in Grand Committee, we on these Benches expressed our concern that it had been published a week before the Leitch review on skills. We also expressed concerns that Clause 19 had been put into the Bill without any consultation with the universities or even with most of the FE colleges. The fact that the Government have laid so many amendments at this stage could be an indication that they are rushing the Bill into law. Or it could be an indication that they are listening—perhaps I should give the Minister the benefit of the doubt.
	We have tabled Amendment No. 1 because we know that the Lyons review of local government is about to be published, certainly before the Budget on 21 March. We are sure from statements that have been made that it will emphasise that strategic regional bodies will need to work closely with local authorities and their partners. It seems strange to us that the local government Bill, too, has been published before the Lyons report. However, in line with what has been said by Lyons, the LGA, the CBI and others, we seek to insert into this Bill a firm duty for the Learning and Skills Council to consult and work with local area partnerships.
	The LGA and the CBI recently met to discuss the Lyons report. In their response, Making 'Place Shaping' a Reality, they made their commitment to working together crystal clear. They said:
	"The CBI and LGA agreed that local government should have a more significant role in enabling local economic development and have agreed to a series of joint actions including improving the delivery of public services that underpin economic development and improving public and private sector engagement".
	When we discussed the amendment in Committee, the Minister concentrated his reply on the local partnership teams of the LSC, which do not appear in the Bill. He emphasised that these teams, whose areas of operation would be coterminous with local authorities, would work flexibly with the local authorities and other partners to deliver services on the ground and ensure that decision-making and provision planning take account of local needs and conditions.
	While we agree wholeheartedly with the need for these teams, we believe that there is a need also for the LSC to be involved with strategic decision-making at sub-regional level. As my noble friend Lady Sharp of Guildford pointed out in Committee, there is evidence to show that travel-to-work areas and areas served by certain industries and centres of further education are formed by sub-regional hubs or clusters of towns and local authorities that have an identity of their own. These groups of authorities have common interests and often join together to undertake activities and make decisions. It is essential that the LSC works at this level, as well as at the strategic, regional andthe very local levels. We therefore envisage these partnerships to be of many different sizes as appropriate to the groupings that exist in the sub-region. We would be happier if there was reference to them in the Bill. I beg to move.

Lord Adonis: My Lords, the noble Baroness, Lady Morris, has summed up the Government's position fully. The noble Baroness, Lady Walmsley, was kind enough to say that the Government might be listening on this Bill; I appreciate the compliment. As she knows, we have spent six years listening, to her in particular, and the reason why we have come forward with these proposals goes back to her initial suggestion that we should have a regional structure for the Learning and Skills Council and not the system of 47 local learning and skills councils that we initially set up. She therefore knows that we listen intently and sometimes reach the right position eventually.
	Having arrived at the structure of the nine regional learning and skills councils, plus, as the noble Baroness said, the 150 local partnership teams, which we expect broadly to mirror the areas of local authorities, we do not think that it would be a good idea to set in place another structure, least of all a statutory structure, although we completely recognise the importance of engaging with the sub-regional groupings and consulting at that level, as she rightly said.
	We believe, though, that the amendment as it is framed would place an additional bureaucratic burden on the Learning and Skills Council and on local authorities. The partner authorities that, under the amendment, the Learning and Skills Council would need to consult when establishing the proposed sub-regional committees are defined in the amendment by Clause 79 of the Local Government and Public Involvement in Health Bill; they are concerned with the aspect of that Bill that deals with local area agreements. The list of bodies for consultation under that clause is extensive. It includes bodies such as the English Sports Council, the Historic Buildings and Monuments Commission, the fire and rescue authorities—and I could go on.
	We believe that consultation by the Learningand Skills Council with bodies such as thesewould be onerous and unnecessary. Moreover, as the amendment proposes that the committees would be statutory, further subsequent changes would needto go through the whole process of statutory consultation again with the same bodies. While we share the objective of the noble Baroness to ensure that there are effective means of sub-regional consultation and engagement by the Learning and Skills Council—the LSC is, indeed, committed to that—we do not believe that putting this arrangement in the Bill would be a productive step forward.

Lord Adonis: My Lords, I will speakalso to government Amendments Nos. 3 and 4. Amendment No. 2 is a technical amendment that clarifies the intention behind the regulation-making power provided in Clause 2. Clause 2 inserts Section 18A into the Learning and Skills Act 2000, which provides for the establishment of regional councils. Section 18A(2) gives the Secretary of State the power to make provision about regional councils in regulations and Section 18A(3) specifies what these regulations may, in particular, make provision about. An illustrative draft of the regulations was made available to the House ahead of Grand Committee.
	Provision about regional councils will be made in regulations, rather than in primary legislation, in order to give the LSC greater flexibility over time, by enabling the LSC to respond to, and more rapidly accommodate, possible future machinery of government changes. The first draft of any such regulations will, however, be subject to affirmative resolution of both Houses, as in the arrangements that I set out in Grand Committee.
	This amendment clarifies that regulations may provide for delegation of its functions by a regional council. While it has always been the intention that regional councils should be able to delegate their functions, this amendment makes it absolutely clear that regulations allowing a regional council to do so can be made. Such regulations may provide for the delegation of functions by a regional council to its chairman, from the chairman to a member of the regional council and, with the consent of the national council, delegation of functions by a regional council to its staff. The amendment also clarifies that regulations may provide for the appointment of a regional council chairman from among the members of the regional council.
	There will be checks on the power for a regional council to delegate functions to its staff. This amendment allows regulations to provide for a regional council to delegate functions to a member of staff, but only where the national council consents. The national council may specify that this consent relates to particular functions of the regional council or description of functions. I beg to move.

Viscount Eccles: My Lords, I am most grateful to the Lord Speaker for her advice. I thank the Minister for his letter of 11 February. I was particularly pleased to see Stockton-on-Tees in the working draft of 29 January attached to his letter. Years ago I attended Stockton-on-Tees technical college. I went to what we then called night school. I was working in a steel foundry. Having previously studied history and economics, it seemed sensible to learn engineering drawing, structural steel design and weight calculations for complex cast components. It was a wholly positive experience. The tech provided me with the wherewithal to do what I was employed to do with much greater understanding and efficiency.
	The Minister's letter of 11 February deals with two of the matters that we discussed in Committee: first, the staff reduction programme, begun towards the end of 2005, and, secondly, the LSC's intended management and geographic structure. The two are interlinked. In 2005, the LSC used a baseline figure of 4,700 employees. The number actually employed in 2004-05 and 2005-06 averaged close to 4,400. When, later this year, there are 3,630 staff, there will, I believe, have been a net reduction of about 800. Since the Minister told the House in December last that 1,100 had already gone, either he or I must be wrong.
	The letter also provides a baseline figure for administration costs in 2001-02 of £249.1 million, which, I believe, was the expenditure from September 2000 to March 2002—a period of 19 months not a year. Things can get difficult when the information provided is unreliable.
	The structure of the LSC will remain decentralised, which is most welcome. The change from the present structure is confined to removing the statutory status of the 47 and conferring that status on the nine existing regional bodies. Although the47 will disappear we are to have the council, nine regional councils, 42 area directors and 150 team partnerships. Whatever else is changing within the LSC, the management structure will not.
	One question is left unanswered: what will happen to the 750 non-executives? How many will remain? My amendment would do two things. First, it would put the LSC structure into the Bill. I believe that that is right because, however policy changes, there will still be some 2,600 institutions of education involved therefore a decentralised structure is vital if local needs are to be met. I have Stockton-on-Tees in mind. Accepting the need for appropriate flexibility, the amendment provides for changes in the number and location of area directors and puts no upper or lower limit on the number of team partnerships. Indeed, I have followed the Minister's letter as closely as I could. Secondly, the amendment would strengthen the position of local authorities in relation to the LSC. That point was made in Committee and is strongly supported by local authorities and the Mayor of London. They all believe that they should appear early in the Bill because of the importance of further education and training to the people who elect them. I strongly agree.
	We are in familiar territory. We are probably close to agreement on the substance, as I believe the Minister was in his reply to the noble Baroness, Lady Walmsley. There remains, however, the question of whether provision should be made on the face of the Bill. The Executive usually say, "It is not necessary. We will see that it happens anyway", but Ministers cannot bind their successors, so an Opposition will say that matters would be better safeguarded by statute than by undertakings. I believe that in this case the face of the Bill is the right answer. Not being a parliamentary draftsman, I am sure that the detailed wording of the amendment will need to be changed. However, if the Minister agreed to its thrust it would be a simple matter to get it right in a government amendment at Third Reading.
	I look forward to the Minister's positive response. I beg to move.

Baroness Morris of Bolton: My Lords, although I have great sympathy with the concerns of the noble Baroness, Lady Walmsley, over the undefined—I nearly read that as unedified—duties of the LSC, I disagree with the need for such wide duties to be put into primary legislation. Our concern is that such an amendment would lead to even more responsibility being taken away from the colleges and invested instead in an unelected body. We would far ratherthe LSC's duties were restricted to light-touch and arm's-length oversight rather than the heavily involved and wide-ranging role that the amendment suggests.
	On the amendment tabled by my noble friend Lord Eccles, as I said in response to Amendment No. 5, the efficiency-saving that the change from local to regional councils will, one hopes, bring about is our primary reason for supporting the move. However, my noble friend raises some interesting questions,and I hope that the Minister can answer them satisfactorily. As I said in response to the first amendment proposed by the noble Baroness, Lady Walmsley, the worst-case scenario that we can envisage would be a LSC that spans national, regional and local levels. That would involve overwhelming bureaucracy and wasteful government at its worst; as such, we cannot fully support the amendments.

Lord Adonis: My Lords, I entirely agree with the noble Lord, Lord Northbourne, that Bills should define or—following the noble Baroness, Lady Morris—edify what they are about. It is important to understand that the Bill before us amends the Learning and Skills Act 2000, which sets out the purposes of the Learning and Skills Council very clearly. Section 3 of that Act says:
	"The Council must secure the provision of reasonable facilities for—
	(a) education (other than higher education) suitable to the requirements of persons who have attained the age of 19,
	(b) training suitable to the requirements of such persons,
	(c) organised leisure-time occupation connected with such education, and
	(d) organised leisure time occupation connected with such training".
	Section 4 of the 2000 Act says:
	"The Council must—
	(a) encourage individuals to undergo post-16 education and training;
	(b) encourage employers to participate in the provision of post-16 education and training;
	(c) encourage employers to contribute to the costs of post-16 education and training".
	Taken together, those two provisions set out a very broad sweep of ambitions and duties in respect of the Learning and Skills Council.
	What the noble Baroness, Lady Walmsley, wishes to do—because she always encourages us to aim higher in our ambitions for education and training—is to define the duties of the Learning and Skills Council more widely still. Though I welcome the fact that she no longer wishes them to promote general well-being, as she did in her amendments in Grand Committee, we are still concerned that her current amendment would significantly extend the duties of the LSC, beyond the point where it is reasonable to do so. In this I follow the noble Baroness, Lady Morris. Proposed paragraph (iii) of her amendment would require the council to,
	"promote the fulfilment of the educational potential by every person participating in courses funded by the Council".
	I understand the aspiration set out by the noble Baroness, but it does not need saying that an FE college is not a school. I say this because, given the terms of the amendment, it would be very difficult to see how either the Learning and Skills Council specifically or indeed the further education system as a whole could effectively discharge the duty in paragraph (iii), recognising that most FE students follow specific courses, a good proportion of them part-time. It is hard to see how, in practice—given that a student's relationship with a college is fundamentally different from a pupil's relationship with a school—the Learning and Skills Council could realistically meet the proposed duty.
	I can, however, give an encouraging response to other elements of the noble Baroness's amendment. She highlights the importance of quality in her amendment. We entirely agree with her. That is why, for example, the Quality Improvement Agency in Further Education is dedicated to working with providers, including those performing poorly, to raise their standards and increase their capacity. We are also, as is the noble Baroness in her amendments, committed to ensuring fair access to learning. That is why we have introduced educational maintenance allowances at a cost of many hundreds of millions of pounds. These are specifically geared towards promoting fair access to learning, and doing so with considerable success. I very much agree with the noble Baroness about the importance of the Learning and Skills Council, both nationally and regionally, co-operating with further education colleges, among others.
	As we set out in our White Paper last March, the Learning and Skills Council is establishing a newand more effective relationship with colleges and providers, so that they can focus on improvements and meeting the needs of learners. A key part of this is the new arrangement for a single nominated Learning and Skills Council individual, called a strategic partner, for each college or other provider. Their role will be to discuss priorities, to commission provision within a much more streamlined and light-touch planning framework and systematically to help co-ordinate and build partnerships between the LSC and the respective college or provider. I hope that the objectives set out by the noble Baroness in her amendment are very substantially met. For the reasons I have given, we cannot go the whole way with her in her amendment.
	I am delighted that the noble Viscount, Lord Eccles, had such a good experience of further education in Stockton-on-Tees and that he brings that experience to consideration of this Bill. As he said, we are narrowing the points of disagreement between us. I have dealt with the issue of numbers a good deal in our correspondence, and I will seek fully to reply to his latest letter to me. I hope to deal with most of the issues he raised, which are technical and deal with the calculation of numbers relating to job changes at the Learning and Skills Council and with base lines.
	The noble Viscount asked how the baseline set out in the Learning and Skills Council's first annual report and accounts, covering a period of 19 months, could be compared with subsequent years. That is a major point. I am informed that the calculation of the baseline was necessary, because Section 29 of the Learning and Skills Act 2000 specifies that the first financial year for the council should be the period starting with the date on which it was established and ending with the second 31 March following that date—as the noble Viscount said, that was a period of 19 months. However, for the first seven months, the Learning and Skills Council was in embryonic form and did not become fully operational until April 2001, when the operational staff transferring from the former training and enterprise councils and the former Education Funding Council for England took up posts. I am advised that the £249 million baseline figure to which the noble Viscount referred is appropriate for the department and the Learning and Skills Council to use because, for all practical purposes, it relates to a period of 12 not 19 months. Subsequent comparisons are, therefore, reasonable. Perhaps I may deal with the other issues raised by the noble Viscount in correspondence.
	Amendment No. 6 is not necessary because it would place a statutory duty on the regional councils of the Learning and Skills Council, of which there will be nine, to set up between 27 and 54 area offices. However, as I said earlier in response to the noble Baroness, Lady Walmsley, the Learning and Skills Council will set up around 150 local partnership teams, which is approximately one per local authority. I set out their functions in my letter to the noble Viscount.
	As I stressed in that letter and in my remarks, the Learning and Skills Council and local authorities already work in close partnership and the arrangements by which they do that will be strengthened by proposals in the Local Government and Public Involvement in Health Bill, currently in another place, which place a duty on responsible local authorities to co-operate with partner authorities, of which the Learning and Skills Council is one, in producing local area agreements.
	I hope that I am further narrowing the points of disagreement between the noble Viscount and myself. When I have replied to more of the specific points raised in his latest letter, I will be happy to engage with him further.

Baroness Walmsley: My Lords, I shallspeak also to Amendments Nos. 9, 21 and 22, which are grouped with Amendment No. 8. Amendments Nos. 8 and 9 are similar to Amendments Nos. 20 and 21 proposed by these Benches in Grand Committee. They would insert a new section in the Learning and Skills Act 2000 enabling the Learning and Skills Council to work with city region councils, which develop their own labour market strategies, as in the case of London, covered elsewhere in the Bill.
	The first amendment would ensure that any such strategy took account of local area agreements and local improvement targets. The second amendment relates to consultations which should be carried out in formulating such strategies and asks that they should include not only the responsible local authorities but also partner authorities working with them. If this duty is not placed on the new strategic body, there is a danger that conflicting strategies will emerge to the detriment of learners in the area and the effectiveness of the programmes.
	The Minister was reluctant to burden the Bill with this detail and claimed that the Local Government and Public Involvement in Health Bill, which is currently passing through another place, will cover these matters. His reassurances have not convinced the Local Government Association, which has asked us to lay this amendment again to indicate the strength of its feeling on the matter. Can the Minister assure the House that the new regional strategic body would not be able to make decisions without regard to these agreements and targets?
	Amendments Nos. 21 and 22 have not appeared previously in the Marshalled List. They would ensure that the Learning and Skills Council gave active regard to representations from the local authority when considering either the establishment or dissolution of a further education corporation and that it provided those authorities with written information and reasons for such decisions.
	Councils have duties with regard to schools and entitlements and options for pupils over the age of 14, and they have a strategic lead with regard to 14 to 19 education. They also have duties to fulfil every child's educational potential under the Education and Inspections Act 2006, and they share responsibility for monitoring admissions, planning sufficient places and building schools for the future. All those responsibilities will be impacted by LSC decisions to open or close colleges of further education. The LSC therefore must exercise its powers to reorganise colleges in close consultation with local authorities. I beg to move.

Baroness Turner of Camden: My Lords, I rise to speak to Amendment No. 11, which is grouped. As your Lordships will be aware, in Grand Committee, there was a very lengthy discussion about the position of London, to which the amendment relates. It was understood, I think, that London is in a special situation because there are skill disparities in London, a high unemployment rate of 7.5 per cent—higher than the national average—and high child poverty rates. Of course, it was understood that skill levels are only one dimension in all this, but they are an important one. There was general agreement that it was right that there should be a special role for the mayor in seeing through the strategy in London and in establishing and chairing a new London skills and employment board.
	Our only problem is that the Bill seems to make that a matter for the Secretary of State's discretion. Although that might be all right today, one does not know what may happen in future. Therefore, we felt it necessary to have an amendment that makes it obligatory on the Secretary of State to ensure that the board is established and permanent—that those arrangements continue in future with no question of them being withdrawn by some future Secretary of State.
	I must say that when we had that discussion and many people agreed with that view in Grand Committee, my noble friend made an extremely sympathetic response. We were very pleased that he responded in the way that he did. Since then, I have had a very welcome letter from him indicating general agreement with that. That being the case, when the amendment is called, seriatim in its place, I intend to move it and hope to receive the endorsement of the House.

Baroness Morris of Bolton: My Lords, first, I congratulate the noble Baroness, Lady Turner of Camden, on succeeding where many of us have failed.
	I am glad that the Government have come some way in amendments to be moved in a later group to meet the concerns raised by the noble Baroness,Lady Sharp, in Grand Committee and again hereby the noble Baroness, Lady Walmsley. However, the government amendment to allow the Secretary of State to specify other people and organisations which the Learning and Skills Council should consult falls a long way short of providing sufficient reassurance.In reply to this amendment or when he moves his amendments, can the Minister confirm which organisations he intends to include in guidance?
	The Learning and Skills Council has enormous powers over further education providers and will have yet more when the Bill goes through. It is only right that those powers are wielded with the utmost care to ensure that local organisations are listened to and their concerns acted on. I hope that the Government will consider whether the amendment moved by the noble Baroness can be more positively incorporated into theirs.

Lord Adonis: My Lords, I start with the London skills and employment board. In Grand Committee, I promised that if my noble friend Lady Turner wished to table her amendment to Clause 4 again on Report, we would give it very sympathetic consideration. She has done so and I can say that we are glad to accept it. We always intended to put the arrangements for the existing non-statutory London skills and employment board on a firm and permanent footing. The amendment gives us the opportunity to do so, which we are glad to embrace. We are also glad that it has such wide support across the House.
	On Amendments Nos. 8, 9, 21 and 22 tabled by the noble Baroness, Lady Walmsley, let me say first that we share entirely the objectives of the noble Baroness in respect of consultation with local authorities and the need to take account of local area agreements. However, as I said in Grand Committee, we do not believe that these amendments are necessary. In the first place, the Local Government and Public Involvement in Health Bill will place a duty on local authorities to co-operate with partner authorities, of which the Learning and Skills Council is one, when producing local area agreements. The Bill also proposes that partner authorities such as the LSC must, in exercising their functions, have regard to every local improvement target specified in the local area agreement which relates to it. That I believe goes a considerable way towards meeting the objectives set out by the noble Baroness.
	However, in terms of the duties on the further education sector itself, we believe that the right place to refer to these matters is in direction and guidance. We have been considering how to take forward the issue of strengthening directions and guidance to ensure that the process takes place. Although the published draft of the directions and guidance does not currently refer to local area agreements and local improvement targets, we intend to ensure that the matters referred to in Amendment No. 8, as proposed in the Local Government and Public Involvement in Health Bill, are addressed in the final version of the directions and guidance. That will meet the objective set out in Amendment No. 8.
	Turning to Amendments Nos. 21 and 22, I understand the concern to ensure that the Learning and Skills Council consults the community, including the relevant local authority, where there are proposals to establish or dissolve further education corporations. Such consultation is already a fundamental part of the process of establishing and dissolving further education corporations and it will continue to be so. Regulations are already in place which set out the process for publishing proposals to establish and dissolve corporations. While some minor amendments to the existing regulations are required to reflect the transfer of powers from the Secretary of State to the Learning and Skills Council, we intend to keep the current process set out in those regulations in place. They prescribe both the type of information that must be included in the proposal and the manner in which it must be published. The proposal must include the rationale for the action being proposed and there is an existing requirement for all proposals to be sent to the local authority in the area the institution is situated, or is proposed to be situated. Under the regulations, following a period of at least one calendar month, any representations from the community, including the relevant local authority, have to be considered by the Learning and Skills Council before a decision is made to establish or to dissolve a further education corporation and, as I have said, these provisions will be retained in the new regulations to be made under Section 51 as amended. Local authorities will therefore have information on the rationale for the proposed action. They will also have the ability to comment on those proposals and to have those comments formally considered before any decision can be made. So I hope that the matters raised by the noble Baroness are fully met.

Baroness Hamwee: My Lords, I shall speak also to Amendment No. 13. These amendments also concern the position in London. Perhaps I should start by reminding noble Lords—although it may be that readers of the Evening Standard need little reminding—that London really does have a government which is quite unlike that in any other city. It has a single-person executive; it also has a scrutiny body. Amendment No. 12 is about the scrutiny role of the London Assembly, which is one of the two constituent parts of the Greater London Authority.
	Under the Greater London Authority Act the Mayor is required to consult the Assembly and others in preparing and revising a large number of strategies. The Greater London Authority Bill currently in another place strengthens the scrutiny role and the amendment seeks to place that strategy on all fours with the other strategies. The same language is used as in the Greater London Authority Bill that regard must be had to comments submitted by the Assembly; a written statement and response must be received; comments by the Assembly that are accepted should be identified and reasons set out for not accepting any comments. I have been in correspondence with the Minister and I thank him for his letter responding to my concerns encapsulated in this and the next amendment.
	The Minister distinguishes this strategy, saying that it is part of the national skills strategy framework—indeed it is—and that the Secretary of State will resolve disputes. There is not so great a distinction. All mayoral strategies sit within a framework, the different subject areas. The Secretary of State has considerable reserve powers. When we were debating that Act we discovered, because someone had counted, perhaps with the use of a computer, that there were more mentions of the Secretary of State than there were of the Mayor. To argue that this strategy is different because of the Secretary of State's role and because of the policy framework within which it sits does not take us a great deal further.
	I mention also the strategy of the London Development Agency, which is part of the Greater London Authority family. The Mayor has a considerable role in it but it is a regional development agency and in that way subject to many of the RDAs' constraints. In the case of this Bill it is the Mayor who appoints the board and it seems to me that it is not only not unreasonable but an appropriate progression of the Assembly's scrutiny role. I believe that scrutiny plays an important part in achieving good policy as the end result. It is not opposition; that is not how I approach it. In summary, I see no difference between this and the other strategies that will be subject to the input from the Assembly in the way that I have described.
	Amendment No. 13 seeks to increase the openness of the way in which the board functions and to include provision for openness in regulations. Again I thank the Minister for his letter. He says that the provision does not need to be set out in directions. I agree that access to meetings and material of such a board should not need saying but experience suggests that it does. I acknowledged in Grand Committee that in some matters confidentiality should inevitably prevail but that it would be best if the board were to decide to be completely open and that the default position should be open. I acknowledge that the Government want to move in the direction of greater openness. I should like to see them do so with more energy than so far offered has been offered.
	I said that experience sadly suggests that it is necessary to spell these matters out. The London Development Agency, to which I have referred, has not always been wholly open in the way it has conducted its business. I pay tribute to the deputy chair of the LDA, who I think is gradually persuading the board of the value of openness. He comes from a background in local government, which is an important factor. Members of the board will mostly be business people. People with that background have a different ethos from those of us who are used to conducting our business in the public eye. They are not naturally comfortable with having sometimes quite difficult discussions in public. The board has met, but it did not do so in a public manner; indeed, I understand that a journalist was specifically refused the opportunity to report on its first meeting. It is not possible to find any of its business published on the web. A Google search takes one to the London Development Agency, and pretty much all I have been able to find is the announcement of the board's membership.
	I would prefer to see these provisions in regulations; or, if not in regulations, at least in the Secretary of State's directions. In his letter to me the Minister said he will consider guidance. My third preference, I suppose, is not "considering" guidance but a commitment to guidance. I would like to see the commitment at a higher level than that, for the reasons I have explained. I beg to move.

Lord Adonis: My Lords, the noble Baroness, Lady Hamwee, has retabled two amendments that were tabled in Grand Committee. Amendment No. 12 would require the London Skills and Employment Board in preparing its strategy to consult the Assembly, and to have regard to any response. Amendment No. 13 would make statutory provision about public access to the body's meetings and papers.
	On Amendment No. 12, we fully accept that the views of the Assembly are important and need to be taken account of by both the Mayor and the London Skills and Employment Board. That will be the case, and it is made clear in the draft directions, which I read out in response to the noble Viscount, Lord Eccles, and which we have made available to the House. These state:
	"In formulating the strategy, the Board must consult the following consultation bodies",
	Including the Greater London Assembly.
	The draft directions also state that the strategy must include a summary of the main issues raised by those consulted and how they have been addressed, so there must therefore be a formal response to that consultation as well. However, I reiterate that we do not accept that the Assembly has a different role from that of other consultation bodies in respect of this strategy. The skills strategy will not be a strategy like the mayoral strategy set out in the Greater London Authority Act, which make up the Mayor's strategic framework for London. Rather, the role of the London Skills and Employment Board is to formulate a skills strategy for Greater London that sits within the framework of legislation that concerns the Learning and Skills Council and its functions in relation to education and training. The Learning and Skills Council will be under a duty to carry out its functions in accordance with the skills strategy. We believe that this makes it a very different strategy from the mayoral strategies.
	The skills strategy for London will be produced by the Mayor and the London Skills and Employment Board working together, with the Mayor as its chairman. The board will be under a duty to comply with directions and to have regard to guidance given by the Secretary of State, and the skills strategy will form part of the national skills strategy. All this means that it is different in kind from the Mayor's other strategies. For this reason, although we believe it right that the assembly should be consulted, it would be wrong to say that the assembly's role should be exactly the same with regard to the skills strategy as with the mayoral strategies in the GLA acts.
	On Amendment No. 13, we have considered this point further. It is still our view that it would be unduly prescriptive to set out in regulations or directions whether and how the public and press should be given access to meetings and documents of the London Skills and Employment Board. If the noble Baroness were willing to withdraw her amendment, I can undertake to seek to develop guidance on the need for transparency and openness in the conduct of the business of the board. On the board's actual practice, although as she said the early meetings have been held in private, I understand that as the members of the board become more accustomed to their new role, it is likely that they will want to move towards having meetings in public rather than in private. If we were to develop guidance of the kind I have just indicated, this would give them a strong lead in this direction.
	There is no disagreement between us about the desirability of having meetings in public wherever possible. However, we believe this decision should be left to the judgment of the board members, most of whom are London employers and well aware of their responsibilities to the wider community in their city and anxious to serve it. Guidance is a better route to go down than directions of the kind envisaged by the noble Baroness in her amendment.

The Lord Bishop of Manchester: My Lords, I shall speak to Amendment No. 15, which stands in my name, but I support the significant points concerning pastoral services that have just been made by the noble Lord, Lord Northbourne, speaking most movingly, not least from his personal experience in FE. With him, I ask the Minister to ensure that the review of pastoral arrangements, including multi-faith chaplaincy, which is commended in the White Paper published last year to which he referred, is then transformed from the vision of a White Paper into the reality of legislation.
	As I and others from across the House have said at all the stages of this Bill, there is more at stake than pastoral arrangements alone, important though they are. My amendment would remove an historical anomaly whereby 16 to 19 year-olds in schools have an entitlement to provision for their spiritual, moral, social and cultural development but 16 to 19 year-olds who are in colleges do not. Such entitlement is about more than pastoral matters; it relates to the whole of college provision, to a college's ethos and inclusivity, and to the extent to which it meets the needs of all young people in college of whatever faith or none.
	It simply cannot be right that young people at this crucial and vulnerable age who are in colleges have no space within the curriculum, or in enrichment or other activities, to explore the important questions about meaning and purpose in their lives and about the values, beliefs and faiths in our society, and that that omission occurs simply because they happen to be following a vocational course or, in some cases, an A-level course in a college rather than in a school.
	I realise that this is not the moment for a great debate about the current moral difficulties of this generation of young people. We need time to absorb the lessons of, for example, the United Nations report on childhood. However, we need to ponder the messages that come from multi-faith chaplaincies in colleges about young people who are very interested in faith and values but who lack the moral compass to which earlier generations of young people may have had access. Some of the young people who are being drawn into a violent gun culture in places such as Peckham, or in Moss Side in my diocese, or some of the young people who are on hard drugs in places all over the country or who indulge in escapist binge-drinking on a Saturday night, are likely, if they are in any form of post-16 education, to be in colleges rather than anywhere else.
	We should salute the FE colleges for the way in which they support these students and for the way in which they are attracting increasing numbers of the so-called NEET students—students not in education, employment or training—who are often from marginalised groups and deprived areas.
	We should make absolutely sure—and this means having some sort have legal duty or entitlement—that the colleges have spiritual, moral, cultural and social development at the heart of any provision, especially in relation to employability skills. Employability is not only about technical and practical skills; employers are often quoted as saying that their main requirements from young employees, in addition to a basic level of skills, are qualities such as reliability, honesty, self-confidence and a sense of right and wrong. These are core human values, as I am sure noble Lords will agree, which have always been directly linked to the values and traditions of the faiths, whether Christianity or the other great religions, and to the great humanist traditions.
	As noble Lords noted in Committee, churches and faiths are at one with the British Humanist Association in championing spiritual and moral education in FE colleges through the LSC-funded project, All Faiths and None. I say clearly from the Bishops' Bench that engaging with faith and non-faith traditions is an essential part of every young person's development and training for skills. If this or any Government convey the impression that all that matters in life is economic prosperity and technical skill, there will be sad consequences for society and young people. Indeed, we are already seeing those consequences in the confusion, disaffection and sometimes depression among the young.
	To refer again to the United Nations report, I see it as no shame at all that 30 per cent of young people have so-called "low ambitions" in the areas of technical and vocational skills such as construction, engineering, IT, health and caring services. My younger daughter is training as a nurse at the moment. These are not low aspirations—and even if they happen to be called so-called "low ambitions" they have just as much value as academic achievements. We need to show young people in colleges that they deserve equality of esteem and entitlement with those young people who are following the academic route in schools.
	On this Bench, we have taken on board the Minister's comments in Committee that this Bill is about the structure and organisation of FE rather than the curriculum. I withdrew the earlier proposed amendment, which might have placed a duty on colleges in respect of the curriculum. But what I suggest through this amendment is that the LSC should have regard, as part of its brief, to the spiritual, moral, social and cultural needs of students as well as to the other important aspects of their education and training. A modest signal given now in this Bill indicating the broader overall purposes of further education would correct the historical anomaly to which I referred, whereby the deeper needs of students and the values and faiths of our society appear to be a matter for 16 to 19 year-olds only if they are in schools, not colleges. That simply cannot be right.

Baroness Morris of Bolton: My Lords, I do not need to repeat the excellent points made by the noble Lord, Lord Northbourne, and the right reverend Prelate the Bishop of Manchester, who spoke even more eloquently on this matter than they did in Committee. I also pay tribute to the work that has evidently gone on behind the scenes in the creationof these amendments. The noble Lord, Lord Northbourne, and the right reverend Prelate proposed two amendments that offer two alternative methods of achieving wider and better provision of spiritual guidance in FE colleges.
	As I am sure the Minister will agree, their arguments are irresistible. Surely he will acknowledge that it is at best odd, and at worst inconsistent, that one 16 year-old should be entitled to pastoral care or spiritual care and guidance while another is deprived of it purely by virtue of the educational establishment that they attend.
	This issue is so important to the general well-being of students, and to the contribution of FE colleges to their wider communities. I have great sympathy with the difficulties that the right reverend Prelate encountered in Committee. It seems that the Bill has been drawn so narrowly as to preclude the inclusion of a substantive amendment to encourage the adoption of either spiritual, moral and cultural guidance as proposed by the right reverend Prelate, or pastoral care as proposed by the noble Lord, Lord Northbourne. I shall be very interested to read the Ecumenical Agency's report later in the year. Can the Minister assure noble Lords that he will take its recommendations into account and that he will communicate to it whether he intends to introduce policy following the report?
	Amendment No. 49 in the name of the noble Baroness, Lady Walmsley, makes for familiar reading, as she said. I recall reading in the Official Report that, during the passage of the education Bill last summer, the Government accepted amendments tabled by the Liberal Democrats that placed a duty on governing bodies to promote well-being. The terms of this amendment cover similar ground but add to that duty a duty to promote community cohesion. I warmly support the principle behind the noble Baroness's amendment; nobody can disagree with the importance of promoting well-being and community cohesion. I hope that other noble Lords will agree with me that no further education college would not promote well-being and community cohesion. Amendment No. 49 raises an important issue, for which I thank the noble Baroness, Lady Walmsley, but I believe that this is a matter of social responsibility and should not be a statutory requirement. We are concerned that the law as it applies to children might be invoked with respect to adults, as could be the case were this amendment accepted. That is our reservation on AmendmentNo. 49.

Lord Adonis: My Lords, I will deal first with the spiritual, moral, cultural and social needs, quite rightly highlighted by the right reverend Prelate the Bishop of Manchester. I entirely agree with him that it is wrong to conceive of further education as purely a matter of technical and practical skills. We made clear in last year's further education White Paper that education and training for community development and personal fulfilment have an important place. The White Paper states that,
	"for young people in particular, [further education] must extend to inculcating the values, attitudes and knowledge that society seeks from its young people".
	We are concerned to see that institutions educating 16 to 19 year-olds take the spiritual and moral well-being of their students seriously.
	We also recognise that many students want their faith or spiritual needs recognised, and that many colleges already provide a range of facilities to meet their students' spiritual needs, including multi-faith chaplaincy services and prayer rooms. Indeed, under Section 44 of the Further and Higher Education Act 1992, there is already a statutory duty on further education colleges, in respect of 16 to 19 year-olds, to ensure that an act of worship is held at least once a week.
	We do not think that imposing a wide-ranging duty on the Learning and Skills Council, changing its remit, is the way forward for the reasons I set outin Grand Committee. I hope I can indicate our commitment to strengthening provision in this area in ways that the right reverend Prelate will welcome. In particular, Clause 7 of the Bill provides that the Learning and Skills Council must have regard to guidance from the Secretary of State on consulting with employers, learners and potential learners. The draft of this guidance, which I have made available to noble Lords, specifically recognises that,
	"for many young people, their faith or spiritual needs are important defining characteristics of who they are".
	The draft guidance also states that the Learning and Skills Council should,
	"consider consulting learners and potential learners on their spiritual and faith or no-faith needs as a key part of reviewing student support services".
	I stress the words "a key part". Consultation on these aspects could, where appropriate, include representatives of key faith communities or faith groups.
	I reiterate the undertaking I gave in Grand Committee to study carefully the review of the spiritual, moral, social and cultural needs of students in further education, being carried out by the National Ecumenical Agency in Further Education, of which the right reverend Prelate the Bishop of London is patron. We look forward to the recommendations of the agency in April. Once this review has been reported in the spring, we will consider whether there is a need for further national initiatives or policy. Following the lead of the noble Baroness, Lady Morris, I undertake that the Minister for Further and Higher Education will be glad to meet the right reverend Prelate and any other noble Lords who wish to join that meeting to discuss the report and initiatives that it would be sensible to take forward in light of it.
	I hope that, while I have not been able to satisfy the right reverend Prelate entirely, I have at least been able to move some way in his direction, on the basis of our shared concern to see these issues taken seriously in further education, and not simply regarded as the preserve of schools and institutions dealing with younger people.
	On Amendment No. 14, moved by the noble Lord, Lord Northbourne, and Amendment No. 49, moved by the noble Baroness, Lady Walmsley, I agree strongly with them that there is a need for robust systems to ensure the well-being of students, promote community cohesion and ensure that all young people have access to appropriate pastoral care. Let me set out some of our provisions in this regard. First, it is a requirement that where 14 to 16 year-old pupils who are registered with a school spend part of their time in a further education college, they remain pupils of the school. That school, therefore, has a duty to promote their well-being. Amendment No. 49, in the name of the noble Baroness, Lady Walmsley, seeks to place duties on FE colleges that mirror existing duties on schools. These are not needed.
	Colleges, through the work of their student support services, tutorial work and enrichment work activities, are constantly engaged in promoting the well-being of young people. That is underpinnedby Section 175 of the Education Act 2002, which requires governing bodies of further education colleges in England and Wales to ensure that they exercise their functions with a view to safeguarding and promoting the welfare of their younger students.
	Colleges are held to account for their performance in both these areas through the inspection arrangements. The common inspection framework in England has a range of relevant evaluation questions, including the extent to which the college is educationally and socially inclusive and the effectiveness of its links with other organisations, including organisations concerned with the care and welfare of children, in promoting the well-being of learners. Indeed, the common inspection framework makes clear that issues affecting the well-being of children have always been central to inspection judgments. Inspectors will evaluate the extent to which the five Every Child Matters outcomes of being healthy, staying safe, enjoying and achieving, making a positive contribution, and achieving economic well-being are being met by colleges.
	The common inspection framework in Wales requires similar evidence of the work of colleges in relation to their learners and their inter-relationship with local communities. It specifically asks how well the learning experiences meet the needs and interests of learners and the wider community and how well learners are cared for, guided and supported; but these judgments will necessarily be dependent on the context of the college. Colleges where the majorityof learners are adults, for example, will have very different arrangements from those where the majority of students are 16 to 19 year-olds. It is increasingly the practice in colleges that there are self-contained sixth-form centres for students under 19, not least to ensure that better and more focused pastoral arrangements are in place.
	As the noble Lord, Lord Northbourne, has rightly observed, a small number of children of compulsory school age are, for a wide variety of reasons, not registered with a school. Some of those are enrolled on a full-time basis in a further education college. All 13 to 19 year-olds in England, whether they are registered with a school, with a further education college or with neither, are covered by provisions in Section 6 of the Education and Inspections Act 2006, which places a duty on local authorities in England to secure access for young persons in their area to sufficient educational and recreational leisure-time activities which are for the improvement of their well-being. "Well-being", under that section of the Act, relates to the five Every Child Matters outcomes and the educational activities must include those that are for the improvement of the young peoples' personal and social development.
	Section 10 of the Children Act 2004 is also relevant. It imposes a duty on each children's services authority in England to make arrangements to promote co-operation between the authority and each of its "relevant partners". The Learning and Skills Council is listed as a relevant partner, being the strategic commissioner of post-16 provision. The National Assembly for Wales is also listed as a relevant partner in relation to children's services authorities in Wales. Once the new First Minister is appointed in Wales in May 2007, these functions will transfer to Welsh Ministers.
	However, we propose to go further still. The White Paper, Further Education: Raising Skills, Improving Life Chances, published last March, stated that FE college governing bodies should consider how their pastoral arrangements should best reflect the characteristics of their student body of all age ranges. Taking this commitment forward, we are currently developing pilots which will test and evaluate different approaches to pastoral support. The pilots will include a particular focus on children and young people in care as part of our Green Paper commitments. We also want to explore how pastoral arrangements can best work to support those 14 to19 year-old learners who learn across more than one institution, and who have been of particular concern to the noble Lord, Lord Northbourne.
	The evaluation of these pilots will be built into guidance for providers by April 2008. I will keep noble Lords informed of their progress and my honourable friend, the Minister for Lifelong Learning, Further and Higher Education will be glad to discuss the outcome of those pilots with noble Lords before we develop that guidance for providers. So I hope that I have gone some way towards meeting the concerns that have been raised.

Lord Adonis: My Lords, the noble Lord raises an important point. He is right that there is now a light-touch inspection regime, but all institutions are still visited on a regular cycle. That varies depending on the type of institution but it is about once every three years. The point that I think the noble Lord was getting at is that the depth of that inspection is now in inverse proportion to success. Successfully managed institutions whose self-evaluation is positive and held to be accurate by inspections will not receive one of the old-style inspections that included large numbers of inspectors sitting at the back of classes. However, institutions that demonstrate weaknesses in their self-evaluation or whose leadership and management is not found to be satisfactory by inspectors—and that includes pastoral support of pupils—willbe subject to a more in-depth inspection and can be issued with a notice to improve or, in extremis, be placed in special measures, which requires a radical improvement plan to be put in place. The inspection arrangements are still robust in meeting the noble Lord's concerns.

The Lord Bishop of Manchester: My Lords, I deeply appreciate the noble Lord's warm supportand that of other noble Lords, including, most particularly, the noble Baroness, Lady Morris of Bolton. I would have loved to have had the warmly enthusiastic and immediate acceptance of my amendment by the Minster, but I have been reassured by what he has said; I appreciate that.

Lord Adonis: My Lords, in moving this amendment, I shall speak also to AmendmentsNos. 17, 18, 47 and 48. I am glad to say that this is another example of the Government listening carefully to the noble Baroness, Lady Walmsley, and producing amendments to match. She has some of the Midas touch of my noble friend Lady Turner. When we come to Clause 19 the noble Baroness, Lady Morris, can also take a good deal of credit for changing the Government's view on the Bill.
	In Grand Committee the noble Baroness, Lady Walmsley, proposed that guidance to the Learning and Skills Council about consultation with learners, potential learners and employers should also cover consultation with "other bodies" to be nominated by the Secretary of State. I undertook to consider the points raised further. I and my honourable friend the Minister for Further and Higher Education are now persuaded that the legislation should cover consultation with learners, employers and "other persons" nominated by the Secretary of State. Amendment No. 17 reflects that change.
	The LSC already consults a wide range of partner bodies about the exercise of its provision and funding duties in relation to learners. We acknowledge that, and of course expect it to continue. By proposing the amendment, we also recognise that there may be a need for consultation by the LSC in the future with "other persons" about decisions which affect them.
	Amendment No. 17 will allow us to specify in guidance organisations that the LSC should consider consulting. That will include partner bodies andother organisations that we may specify. Specifying organisations in guidance will maintain flexibility and allow us to respond to changing circumstances in the FE system without the need to amend legislation.
	A draft of the statutory guidance, which thisclause proposes that the LSC must have regard to in consulting employers, learners and other organisations and partners, has been made available to the House. The guidance will remain under review and would be updated to reflect any change to the duty placed on the LSC by Clause 7. However, since it already covers consultation with the LSC's partner organisations, we have no immediate plans to extend the categories of persons whom the guidance recommends that the LSC should consult.
	Amendments Nos. 16, 18, 47 and 48 make minor, technical changes to Clauses 7 and 21. Amendments Nos. 16 and 47 make it clear that there might be consultation, by the LSC or by governing bodies of FE institutions, with one or more of the categories of consultees named in guidance, and that such consultation will be on decisions that specifically affect that group or person.
	Clause 7 requires that guidance from the Secretary of State to the LSC specify that the views of a person being consulted are to be considered in light of their age and understanding. Clause 21 contains a similar requirement in relation to guidance to governing bodies of FE institutions from the "appropriate authority"—the Secretary of State for institutions in England, and the Welsh Ministers for institutions in Wales. Amendments Nos. 18 and 48 ensure that those requirements relate only to consultation with learners and potential learners. I beg to move.

Baroness Walmsley: My Lords, I shall speak also to Amendments Nos. 24, 25, 26, 36, 37 and 39 in this group, all of which refer to Clauses 17 and 18. All my amendments, save Amendment No. 39, are the same as those laid in Grand Committee, and I am afraid that my views have not changed, despite the Minister's careful reply on that occasion.
	Amendment No. 23 would remove the reference to,
	"significantly less well than it might in all the circumstances reasonably be expected to perform",
	as we believe that this is an intervention too soon, too far and too woolly. Amendment No. 24 would allow the council to give the corporation of a college advice but not directions. Amendment No. 25 would remove the power for the LSC to require a governing body to dismiss a principal or other senior member of staff. Instead, Amendment No. 26 would insert a statutory procedure through a model similar to that which applies to schools that are failing, whereby a written report of the LSC's concerns would be sent to the governors and the principal, and the governors would have to reply to the LSC with their plan of action. Frankly, if this procedure were in place, I could not envisage any need for the LSC to use the powers that the Government want to give it. Indeed, I believe it is only right that such a procedure should be laid down in statute. Amendments Nos. 36, 37 and 39 would insert the appropriate similar amendments into Clause 18, which relates to Wales.
	We believe that these powers are neither appropriate nor needed in the hands of an unelected body whose job is to fund and organise the provision of further education. Despite the Government's amendments, which state that the LSC and the Welsh Assembly Government must, after consultation, publish statements on how they plan to use the new intervention powers and lay them before the Secretary of State and Parliament or the Welsh Assembly as appropriate, we are still not happy with the extent of these intervention powers. We have therefore sought in this group of amendments to modify the worst of them.
	We acknowledge that the Government have made clear the circumstances in which the LSC mightdirect a governing body to dismiss a senior member of staff. However, there is no evidence that in these circumstances governing bodies would not act by themselves without needing the LSC on their backs. College governing bodies take these matters extremely seriously, and there is no evidence that a college has not acted decisively when it has needed to. In a sector of around 400 institutions, it is inevitable thatsome will perform less well than others. Around70 principals leave their post each year, but most leave to take up a post elsewhere or to retire. A small number are asked to leave by their governing body. In cases of serious mismanagement or college failures, governing bodies work with the LSC and an interim principal until a new person can be appointed.
	The Association of Colleges has estimated that25 financially weak colleges were merged with stronger neighbours between 2000 and 2005—a period, by the way, of enormous improvement in the whole sector, matched by no other public service. Only on two occasions in the past 10 years has a whole governing body resigned.
	While considering the Government's proposal to take intervention powers from the Secretary of State and give them to the LSC, it is worth noting that the Secretary of State has not found it necessary to use these powers since they were created by the Further and Higher Education Act 1992.
	Noble Lords will recall that another of our concerns about Clause 17 is that it interferes with employment law and the contractual arrangements between a college corporation and its employees.The intervention of the LSC or Welsh Assembly Government could make it more difficult for governors to take the appropriate action, and it could certainly open them up to legal action and possible compensation for breach of contract.
	The Government's response to that issue in the guidance is that they,
	"would expect the college to have a strong evidence base on which it would be able to rely in the event of a claim for unfair dismissal being brought before an employment tribunal".
	Any college that has such an evidence base will itself dismiss the person concerned and does not need the LSC to instruct it to do so. If it has not such a base, the person should not be dismissed in any case—either by the college independently or on the instruction of the LSC.
	Another concern is that the Bill gives the LSC new powers but does not specify how responsibility for failure should be attributed to the various senior members of staff. The absence of a real appeals process would make it impossible for the college to comply with the statutory disciplinary and dismissal procedure in any meaningful way, as any representations that the individual might make to the college would make no difference. The decision will not be made by the college; it will be made by the LSC.
	Much of the money spent by colleges is public money, and none of us condones bad practice or poor quality in teaching or management. Of course the LSC has a role in supporting and advising colleges that are underperforming. In extremis, there are still the powers of the Secretary of State. There is no evidence that we need to transfer those powers to an unelected body. As we are talking about public money contributed by the taxpayer, it is only right that someone who has been elected and can be dismissed by the same taxpayer has the powers of intervention. I beg to move.

Baroness Morris of Bolton: My Lords, I shall speak to Amendments Nos. 34 and 40, but first I wish to say how glad we are that the Government have listened to some of our concerns about the accountability and transparency of the powers that the clauses introduce. Their amendments go some way to provide the necessary scrutiny of such potentially draconian powers and they certainly improve Clauses 17 and 18 in many ways.
	We do not feel, however, that those amendments go far enough. They do not even begin to address our concern about the effect that the clauses will have on the relationship between the Learning and Skills Council and further education institutions, of which the noble Baroness, Lady Walmsley, so eloquently spoke. More importantly, they do not disguise the fact that the powers given by the clauses would damage the development of the further education sector as a whole and reduce the independence of individual colleges still further. The government amendments do nothing to change that; therefore, although we are glad that the Government are listening to this House and making a genuine effort to find a middle ground, the amendments are not enough.
	As my response to the government amendments may have led your Lordships to expect, we are very sympathetic to the amendments tabled by the noble Baroness, Lady Walmsley. They deal with exactly the point that the Government have failed to address: the effect that the clauses will have on the relationship between the Learning and Skills Council and further education institutions. Clause 17 provides for the Learning and Skills Council to take on an enormously powerful role. The Government have made it clear to us that they have no expectation of that power being used at all frequently. As we have heard, it has never been used by the Secretary of State. By their amendments, they have made any use of it much more transparent and accountable not only to Parliament but to the wider public.
	None of that makes any difference to the fact that the body that directs much of colleges' funding, issues guidance and is generally a close and constant presence in the running of our colleges is being given the power to go in over the head of the governing body and sack staff, even to dismiss governors. The Liberal Democrat amendments make it considerably more likely that the powers will indeed be used only as a backstop in the most urgent cases. As such, they are very sensible and go a long way to improve the clauses. However, we do not feel that they can be amended sufficiently to guard against the harm we believe they will do. So, despite the best efforts of the Government to address our concerns, we have tabled amendments to leave out Clauses 17 and 18. We believe that these clauses are a step in entirely the wrong direction.
	Further education institutions need to be given more, not less, independence. They need to be trusted more by the Government, not hedged around with endless rules, regulations and micromanaged targets. The only way for this sector to gain the status and credibility it deserves, and which we desperately need it to achieve, is for the Government to give colleges and the governing bodies managing them the power to develop their own diverse, innovative and locally responsive strategies and direction. Frankly, the Government should know better than to continue with clauses like these. They have commissioned several reviews and reports, most recently the Leitch review, all of which have told them the same thing: colleges need to be trusted with real independencein order fully to achieve their potential. Yet the Government continue with this unprecedented level of interference. There is no suggestion that this degree of control will be appropriate for schools or universities, so why do the Government think it is appropriate for colleges?
	These powers will not only prevent the further education sector developing, they will actively damage it, which is why we propose the outright removal of the clauses rather than their modification. Giving the Learning and Skills Council these powers will erode the position of colleges' governing bodies instead of encouraging governors to continue to maintain a keen and active interest in their colleges. The Government are taking responsibility away from them, for no discernible reason. As I said at Second Reading, the further education sector receives some of the best Ofsted reports. I should, however, make it quite clear that we are not against rigour or driving up standards. We are perfectly happy for these powers to continue to reside where they are at present: with the Secretary of State, who is elected and paid to take difficult decisions and is ultimately accountable to the electorate. In Clause 18 the proposed shift of powers to the Welsh Assembly is at least a shift to another body answerable to the electorate, but Fforwm, the Welsh sister body to the Association of Colleges, reports that colleges want these powers to remain with the Secretary of State.
	No doubt the Minister will tell me, as he did in Grand Committee, that these powers are very rarely used and are a last resort, but clearly not everyone sees them in that light. The morning after the Queen's Speech, the "Today" programme said that there was to be a further education Bill to "sack college principals", and in a press release in response to the Government's White Paper that heralded the Bill now before noble Lords, the Learning and Skills Council referred more than once to poor provision being "cut out". You can almost see the Learning and Skills Council salivating at being given this power.
	We too want to see the highest standards in our colleges, but if there is a need to intervene to remove a principal or members of the governing body, the power to do so should reside with the Secretary of State. Members on these Benches feel that these clauses are a significant step in the wrong direction and therefore would like to see them removed entirely. When it comes to the appropriate time, I shall seek the opinion of the House.

Lord Adonis: My Lords, where a local education authority exercises its powers to suspend a failing school's delegated budget, it becomes the direct employer of the staff and can take decisions, including on the employment of teachers. The powers are comparable. However, I cannot stress too greatly, in response to the noble Baroness, Lady Morris, that these are in extremis powers to be used in casesof objective failure and underperformance. The autonomy of governing bodies to sustain failure, which is essentially the noble Baroness's case, would not be supported by the Government or, I hope, by the noble Baroness on reflection.
	We are talking about cases of failure and underperformance that are demonstrated in inspection reports and are objective. We are not talking about any discretionary power to intervene that would undermine the proper autonomy and freedom of governing bodies of institutions that are running well to conduct that institution's affairs. I hope that the distance between us is narrower than the noble Baroness portrayed. She was presenting a great point of principle that I do not believe pertains. If she were sitting where I am and had to take decisions about institutions that are failing and therefore offering a substandard education to their students, I am not sure that she would see it so much in terms of the absolute principle that she has set out.
	I understand that there are strong feelings because the powers, if exercised, are draconian. I would liketo reassure the House that they would be used onlyin extremis. I would also like to speak to our Amendments Nos. 27 to 33 and 35 in this group, which, as the noble Baroness generously acknowledged, go some way to meeting the concerns set out in Grand Committee.
	My amendments would ensure that the failure policy under which the Learning and Skills Council is operating is approved by the Secretary of State and laid before the House. We believe that there will be proper accountability for the overall policy under which the Learning and Skills Council acts in this area. It is already accountable to the Secretary of State for a comprehensive framework that includes quarterly ministerial reviews and a performance forum that charts progress against annual targets. As I stressed, the amendments that I am moving will, over and above that, require the Secretary of State formally to approve and to lay the statement of intervention policy before each House of Parliament, which will further increase transparency and accountability.
	As the noble Baroness, Lady Walmsley, rightly said, cases of outright failure are extremely rare; nevertheless, we want to address more effectively and efficiently any such instances and those of inadequate provision. That is the reason for these powers. However, when it comes to intervening, in all cases the LSC will raise any concerns with the institution's chair of governors and college principal and agree an appropriate way forward. Regardless of the scale of concern, the LSC will issue a notification to the institution setting out the agreed action arising from the initial discussion and monitor progress against that notification. In more serious cases a formal notice to improve will be issued, specifying the required improvements and a timescale of no more than 12 months to secure them. We believe it is right that providers have the opportunity to improve before any formal intervention takes place. That is another stage that has to be gone through before the formal intervention powers set out in the Bill could take effect.
	In cases of outright failure, where insufficient progress is made against the agreed improvement plan, and where the college is unable to demonstrate that it has the capacity and capability to bring about improvement, the LSC could consider the use of powers under Clause 17. Those powers might also be considered in exceptional circumstances where there is immediate and significant risk, such as fraud. The notice will specify any immediate action; for example, a direction to remove the chair of the governing body or to dismiss a specified senior member of staff. I stress, though, that the use of these powers must be relevant and appropriate in the given circumstances. The intervention policy that will be developed to set out the procedures will illustrate the circumstances when it would be appropriate to consider the direction to dismiss a senior office-holder.
	I stress again that these powers will not be unfettered. As a result of the government amendments I have just spoken to, the Secretary of State must approve the intervention policy. He will also retain the power to direct the LSC itself, should that be necessary. In addition to these powers, the LSC continues to be accountable to the Secretary of State through the comprehensive accountability framework.
	The judgment made on failure or unsatisfactory performance will not be imprecisely defined. The LSC's published intervention policy will make clear precisely what is meant in practice. The precursorto that document, Identifying and Managing Underperformance, which I have made available to noble Lords, refers to providers who have been awarded a grade 4 by Ofsted inspectors, which isthe most unsatisfactory inspection grade, and to situations where an area of provision is deemed to be unsatisfactory or where the LSC's analysis of learner success rates shows that more then 25 per cent of provision falls below the minimum level of performance. The definitions we have in place now, as set out in the guidance document Identifying and Managing Underperformance, will, no doubt, be extensively debated during the consultation process that the LSC will be required to conduct as a result of government Amendment No. 29. We will take full account of the consultation undertaken as a result of that amendment.
	We expect that, in the vast majority of cases where failure is identified under the procedures I have just set out, the governing body would take the necessary action to improve performance before any intervention was needed. The LSC would continue to work with the governing bodies and to respect their autonomy during that process. I also reassure noble Lords, and reiterate for the record, that the LSC would only be able to direct dismissal where the governing body already has the power to dismiss under its own articles of association, so the role of the LSC would be akin to that of a local authority in a case of extreme failure on the part of a school. The corporation of the institution, which is normally the governing body, being the employer of the staff in an FE college, would continue as the employer, and this would not change that relationship.
	Where the LSC has invoked its power to direct a governing body to dismiss a member of staff, there will be a very clear evidence base for such a decision. That should provide sufficient evidence for governing bodies to successfully defend any claims of unfair dismissal under employment law. The Secretary of State's retention of the powers to direct the LSC where he is satisfied that it would be appropriate to do so is also important in this matter.
	The noble Baroness, Lady Morris of Bolton, wished to press the principle of Clauses 17 and 18. I entirely respect her decision. However, on the point by the noble Baroness, Lady Walmsley, if Clauses 17 and 18 remain in the Bill, we would be prepared to look sympathetically at her Amendment No. 26, which sets out a requirement for a further formal statutory process to be gone through. We would consider bringing back amendments at Third Reading to ensure that there is a further, formal statutory process whereby the principal of a college of further education has to be written to, along with the governing body, by the Learning and Skills Council. We would further require that that report must set out in writing, at the beginning of the process of intervention, the Learning and Skills Council's concerns.
	I have given a good deal of reassurance about how these powers will be exercised. As I say, they are for cases of extreme failure. In that context, I hope that the House will feel able to continue to support Clauses 17 and 18.

Lord Adonis: My Lords, I have now found the relevant page in my notes and can tell the noble Lord, Lord Roberts, that Welsh Ministers must consultas appropriate when preparing or revising their intervention policy statement. They must lay the document before the National Assembly for Wales and publish it. The Assembly will play a formal part in the process.

Baroness Morris of Bolton: moved AmendmentNo. 34:
	Clause 17 , leave out Clause 17

On Question, Whether the said amendment(No. 34) shall be agreed to?
	Their Lordships divided: Contents, 187; Not-Contents, 135.

Baroness Morris of Bolton: moved AmendmentNo. 40:
	Clause 18, leave out Clause 18

Lord Adonis: My Lords, in moving the amendment, I shall speak also to AmendmentsNos. 42 and 44. The amendments relate to Clause 19, which concerns the foundation degree-awarding powers of further education colleges.
	There have been many hours—indeed, days—of discussion in and outside the House on Clause 19. These government amendments reflect those long discussions. I hope that they will enable us to establish a consensus across the House and I thank all noble Lords who have helped us to find a good way forward, including both opposition Front Benches. Perhaps I may mention also John Hayes, from the opposition Front Bench in another place, my noble friend Lady Warwick and her colleagues in higher education, including many Members of this House, and the noble Lord, Lord Dearing, who I know will speak after me to Amendment No. 43.
	In our discussions, my honourable friend the Minister for Lifelong Learning, Further and Higher Education and I have reflected on three issues in particular, in relation to which we are now proposing amendments to Clause 19. The first issue is whether further education institutions should be allowed to authorise other institutions to award foundation degrees on their behalf. The second issue is whether the use of the new foundation degree-awarding powers should be subject to scrutiny after a fixed period. The third is whether there should be a formal review of the effects of FE colleges awarding their own foundation degrees.
	In all our discussions, the needs of learners and quality control have been paramount. We must take every precaution to protect not only the proud reputation of the UK's higher education brand, but also the prestige of the foundation degree both at home and abroad. We have worked closely with the Quality Assurance Agency in drawing up a draft criteria document, which has been made available to your Lordships. The document is a cornerstone of our rigorous quality assurance mechanism and will form the basis of the QAA's assessment of any further education institution in England applying for foundation degree-awarding powers.
	The criteria are rightly stringent. They are based extremely closely on the existing standards for institutions applying for award-making powers, supplemented by additional criteria that are tailored specifically to the foundation degree qualification. These additional criteria include the requirement for an applicant institution to have no fewer than four consecutive years' experience, immediately preceding the year of application, of delivering HE programmes at a level equivalent to the foundation degree.
	It has been commented that the proposals will jeopardise existing relationships between further and higher education institutions and that this will in turn have adverse consequences for learners. I stress that there is no intention whatever of endangering existing partnerships, especially where these are working well. While some FE institutions will seek foundation degree-awarding powers because that will meet and respond to local demand from employers and learners and because the development of higher-level skills provision is at the heart of the institution's coreskills mission, they will still want to maintain—indeed, to develop—their collaborative arrangements with higher education institutions. Others will wantto maintain the existing validation arrangements in delivering foundation degrees because that arrangement suits the local demand. This is about choice. We regard all these different arrangements as being equally valid.
	In this respect, we are entirely sympathetic to the spirit of the amendment of the noble Lord, Lord Dearing. We agree with his emphasis on the importance of the student voice and the need to ensure that the interests of learners are protected and promoted. Furthermore, we entirely share his desire to protect the excellence of the UK's higher education brand. The requirement to consult the student body will be written into the criteria that will form the basis of the Quality Assurance Agency's assessment of a further education institution that is applying for foundation degree-awarding powers. Paragraph 4B of the current draft of the criteria document states:
	"We propose that an application will not be considered unless the college has consulted its students about whether it should seek to acquire Foundation Degree Awarding Powers".
	It is quite right that the views of the students are taken into account. Inserting this requirement into the criteria, which will be used to determine whether an institution should be recommended for foundation degree-awarding powers, is the most appropriate way of achieving that end and will secure the objective that was rightly set out by the noble Lord, Lord Dearing.
	We fully agree with the noble Lord's wish to ensure that transparent and articulated progression routes are available to all learners. This issue, too, is dealt with comprehensively by the draft criteria for foundation degree-awarding powers. Paragraphs 28to 34 of Section 3 of that document set out the requirement for articulation agreements to be a core feature of all foundation degree programmes. Articulation agreements are the means by which students studying for a foundation degree can identify routes for progressing to further higher-level study, typically the completion of an honours degree, either at the institution awarding the foundation degree or elsewhere.
	Furthermore, we have published Foundation Degrees: Ensuring Progression, a note that sets out the detail of how articulation arrangements currently work, how they are communicated to learners, and remedial actions that are available in cases where problems arise. This note will be incorporated into the next iteration of the criteria document, but, for now, it may be useful to expand on the main points.
	Articulation agreements identifying progression routes for learners who wish to progress from a foundation degree to further higher-level study are a matter for institutions themselves. All foundation degree providers within the FE system currently have such agreements with providers of honours degrees and they will continue to do so regardless of whether they are awarded their own foundation degree-awarding powers. Therefore, Clause 19 will in no way diminish the importance placed on clear progression routes for learners.
	The current arrangements work well, with institutions collaborating in the interests of their students. However, a safeguarding role is also played by the Quality Assurance Agency. The criteria that the QAA will use to assess an institution's application for foundation degree-awarding powers include, as I stated a moment ago, detailed guidance on the need for an applicant to demonstrate that it has identified and publicised,
	"clear routes that facilitate opportunities for successful progression from Foundation Degrees towards another qualification".
	If an institution has not made adequate provision in this respect at the time of submitting an application for foundation degree-awarding powers to the QAA, it will not be able to satisfy the criteria and willnot be recommended for the new foundation degree-awarding powers. Put quite simply, articulation agreements will be absolutely essential if a further education institution is to be recommended for foundation degree-awarding powers. It is also critical that both FE and HE institutions promote the articulation arrangements to their learners. Foundation degree students need to identify clear and viable progression routes should they choose to make their foundation degree a stepping stone to further higher-level study, which would typically be the completion of an honours degree. For this reason,the QAA benchmark statement, which will be incorporated into the criteria for foundation degree-awarding powers, clearly says:
	"The identification of explicit progression arrangements should be available to learners on foundation degree programmes through course handbooks and prospectuses".
	I believe that the system delivers good articulation. There are clear incentives for providers in both sectors to offer progression and our proposals do not change these. Lifelong learning networks, which bring partners together to provide progression both into and through higher education, reinforce these incentives. If one looks at college and university prospectuses, one immediately notices the emphasis that is given to foundation degrees as a pathway to honours programmes, as well as a valuable qualification in their own right.
	Both further and higher education institutions already promote these opportunities to their prospective students through course documentation, and it is in the interests of institutions, if they wantto continue to attract students, to take a positive approach to advertising such opportunities. Furthermore, organisations such as lifelong learning networks and Foundation Degree Forward have an important role to play in clarifying and strengthening progression routes into and from foundation degrees. For example, Foundation Degree Forward produces best practice guidance for HE and FE institutions about the promotion of articulation to students.
	When the QAA periodically returns to an institution to carry out an audit, it will again scrutinise the ways in which progression routes are identified and promoted to foundation degree students. If the institution is deemed inadequate in this respect, it will not achieve a judgment of broad confidence from the QAA. A judgment of limited confidence or no confidence would have serious adverse consequences for an institution's reputation and, for this reason, the self-regulating system that operates at present is effective and sustainable.
	The amendment proposed by the noble Lord,Lord Dearing, also raises the issue of whether an institution that is granted the new foundation degree-awarding powers should then be able to delegate those powers by authorising another institution to award foundation degrees on its behalf or to accredit another body to provide courses leading to a foundation degree. The Government have full sympathy with the intention behind this part of the noble Lord's amendment—the desire to see that standards are maintained. These are concerns that I share. For this reason, as I shall explain, we have proposed Amendments Nos. 41 and 42, which address this issue.
	Finally, we propose to give clear advice to the Privy Council that foundation degree-awarding powers should be granted for an initial time-limited periodof six years. We do not believe that it would be appropriate for a further education institution applying for foundation degree-awarding powers for the first time to be granted those powers in perpetuity. Our recommendation is that the powers should be granted for an initial probationary period, which would allow the further education institution to establish a strong track record in the delivery of high-quality foundation degree programmes before it is given the power to continue awarding those degrees.
	Once this probationary period has been completed to the satisfaction of the QAA, the institution may apply for the powers to be renewed. I should make it absolutely clear that it will not necessarily be a case of an FE institution having to reapply for its powers every six years; when the initial probationary period has been served and the QAA is satisfied with the institution's provision, its foundation degree-awarding powers can be granted indefinitely by the Privy Council. The noble Lord, Lord Dearing, suggested that a probationary period of four years rather than six should be time enough to determine whether all is well or whether problems have arisen. Your Lordships may be aware that, when we made it possible in 2004 for private providers of HE to obtain degree-awarding powers, we said that these powers should be awarded for periods of six years. We do not feel that a shorter period of award for high-performing further education institutions would be right in the light of this. I am sure that the noble Lord, Lord Dearing, will be alive to that comparison.
	We fully intend that, as well as the initial assessment by the QAA to ascertain whether they are competent to award their own foundation degrees, FE institutions that obtain foundation degree-awarding powers will be subject to an interim review during their six-year probationary period. In consultation with the QAA, which shares our view on the importance of regular quality reviews, we are considering when these interim reviews should take place.
	Amendments Nos. 41 and 42 address the issue of whether FE institutions should be allowed to authorise other institutions to award foundation degrees on their behalf—an issue that has been loosely referred to as "franchising". I hope that these amendments will address the concerns raised in Grand Committee by the noble Baronesses, Lady Sharp and Lady Walmsley, my noble friend Lady Warwick and the noble Lord, Lord Dearing. As I explained, it is envisaged that, when a FE institution first applies for powers to award foundation degrees, it will be granted these powers for an initial probationary period of six years.
	Amendments Nos. 41 and 42 reflect the helpful advice that we have received from the QAA on this matter. Amendment No. 41 proposes to amend Section 76 of the Further and Higher Education Act 1992 so that the Privy Council has the power to specify, in an order granting a further education institution foundation degree-awarding powers, that the institution's power to grant foundation degrees does not include the power to authorise other institutions to do so on its behalf. We are seeking to place controls on FE institutions applying for foundation degree-awarding powers where their students undertake a significant proportion of their foundation degree provision at another FE institution that does not have those powers.
	We considered best how to achieve this. We have opted for an amendment to Clause 19 and further changes to the criteria that the QAA will use to assess an application for foundation degree-awarding powers. Dealing with the matter entirely in primary legislation could leave us with an arrangement that lacked flexibility. For example, a statutory provision preventing further education institutions from awarding foundation degrees unless they had provided the majority of the course could restrict the ability of FE institutions with foundation degree-awarding powers to offer foundation degree courses that include a significant work-based element where training is provided by an employer. Foundation degrees are, by their nature, work-focused higher education qualifications that do not necessarily conform to any specific delivery model. Work-based learning and employer involvement in the design and development of foundation degrees is positively to be encouraged. I should it make clear that, whatever proportion of a foundation degree is taught in the workplace, responsibility for the quality of provision lies with the awarding institution.
	We have therefore settled on Amendment No. 42, which amends Section 76 of the 1992 Act so that the Privy Council also has the power to specify in an order that the institution cannot grant a foundation degree to a person who was not enrolled at the institution at the time he completed the course of study for which the foundation degree is granted. This amendment should be considered in conjunction with further changes that we now propose to the criteria against which an applicant institution will be assessed. The QAA will not recommend an FE institution for foundation degree-awarding powers if that institution's foundation degrees are being taught largely by another FE institution that does not itself have those powers. This will be spelt out in the criteria that the QAA will use. I recognise that the draft criteria document that we published on 14 February does not fully reflect this point, and I undertake that the next version, which we intend to publish very shortly, will do so. I should add that in all this we are working closely with our advisers on quality in the QAA.
	Until now, when degree-awarding powers have been granted under the 1992 Act, they have automatically included the power to authorise another institution to award degrees on one's behalf, and there has been no requirement that recipients of degrees from the institution with degree-awarding powers must be enrolled at that institution. The power to specify these restrictions in an order granting foundation degree-awarding powers will lie with the Privy Council. However, in advising the Privy Council, the Secretary of State will act on the basis that it is inappropriate, in the first instance, for an order granting foundation degree-awarding powers to a further education institution to permit the institution to authorise other institutions to award its foundation degrees, or for those foundation degrees to be awarded to students not enrolled at the institution with foundation degree-awarding powers. This is not a position dependent on the strength of any individual college's application. Rather, it is an acknowledgement that without this restriction there could be unacceptable risks to the perceived quality of the UK degree brand.
	As we have made clear in the published draft criteria, our advice will be that the Privy Council, in the first instance, should grant foundation degree-awarding powers to an FE institution for a fixed period of six years. At that point, it will be open to the institution to apply to have the powers renewed. At that point in the process, the Secretary of State may decide to advise the Privy Council that, as well as being renewed, the powers should be upgraded to allow the institution to authorise other providersto award its foundation degrees, and to award foundation degrees itself to students enrolled elsewhere. By this time, the FE institution will have had the opportunity to establish a track record not only as a provider of higher education, which it must already have been in order to be considered for foundation degree-awarding powers, but also as a body able to award its own qualifications.
	We believe that, by this time, it will be possible for the leading HE providers in the further education sector to be granted the full foundation degree-awarding powers, without risk to the immensely important UK higher education brand. However, if a college has completed its six-year probationary period and there is still concern about the reputational risks arising from the upgrade of its powers, there is no requirement for such an upgrade to take place.
	It is conceivable that an FE institution might wish to enrol a student and then make arrangements for a significant proportion of that student's foundation degree provision to be delivered by another FE institution without powers to award foundation degrees. I stress that the representatives of colleges in the mixed-economy group have made it clear that this is not what they intend. I must be absolutely clear that an institution without foundation degree-awarding powers that was farming out its students in this way would not be recommended by the QAA for these powers.
	Moreover, if a FE institution were granted foundation degree-awarding powers restricted to persons enrolled in the institution and were then found to be franchising out its foundation degree students, I would expect it to receive a limited confidence judgment in its QAA audit. In the event that, as would most probably be the case, those powers had been granted on an initial time-limited basis, the institution would certainly not successfully complete its probationary period and it would not be recommended for renewal of the powers. This will be made absolutely clear in the draft criteria against which applicant institutions will be assessed by the QAA. We intend to bring forward a further draft of the criteria document shortly, which will reflect this important change.
	I should also make it clear that, once the QAA is satisfied that an FE institution is competent to exercise full foundation degree-awarding powers, it will be recommended to the Privy Council that the restrictions referred to in Amendment Nos. 41 and 42 be lifted. At that point, the FE institution will be permitted to use its foundation degree-awarding powers without any further restriction, just as higher education institutions with degree-awarding powers are currently able to do.
	Amendment No. 44 addresses whether the use of the new foundation degree-awarding powers should be subject to scrutiny after a fixed period of time; that was another issue raised in our deliberations in Grand Committee. My honourable friend the Minister for Lifelong Learning, Further and Higher Education and I have given careful consideration to the points made about this issue. We recognise that Parliament and the public have a strong interest in understanding the practical effects of the use of these powers. We all share a common interest in ensuring continuing confidence in the quality standards of foundation degrees, wherever they are awarded.
	We propose, therefore, that the Secretary of State should be placed under a duty to lay a report before Parliament on the effects of Clause 19, which gives the Privy Council the power to grant FE institutions in England the power to award foundation degrees. This report, which is encompassed by Amendment No. 44, is to be laid within four years of Clause 19 coming into force. We believe that that is a further significant step towards meeting concerns raised in Grand Committee.
	I have spoken at length because the issues involved are important and complex. We believe that the changes that we have made go a significant way towards meeting the concerns raised by noble Lords in Grand Committee and those encompassed by the amendments of the noble Lord, Lord Dearing. I commend them to your Lordships, and I beg to move.

Lord Dearing: My Lords, I shall speak to Amendment No. 43, which is in this group. I am in the unusual position of listening to a 20-minute reply to amendments I have tabled but not argued for. I am most grateful to the Minister—I am overwhelmed. If I may, I will take all four elements of my amendment. The first was that students must be consulted before an application is made for foundation degree-awarding powers. What the Minister said is excellent. It is a necessary condition for the award of powers that this consultation takes place. I take it that it is implicit in that provision that the outcome of that consultation will be notified to the QAA when it considers the application. I am well satisfied on that.
	The final part of my amendment—I will leave the two more difficult points until last—concerns a review after four years. The Minister explained why he has gone for six years—there is a precedent, but I have chosen another precedent for my four years. I am reassured, however, by the knowledge and his assurance that there will be an interim review after some unspecified period—probably around three years. That means that he has gone a long way towards my view that there needs to be an early review. I am well content to accept what he has said.
	I turn to the more difficult elements: one was franchising and the other was progression. On franchising, the Minister said that there has been some further thought about the information given in, I think, Section 8 of the notes that were circulated on 14 February. It provided that most of the learning had to take place in the institution that had the degree-awarding powers. He has now moved away from that to provide for those cases where much of the learning takes place in a company. I believe that there are a number of such cases where most, if not nearly all, learning takes place in a company. I think the Minister was saying that the "most" criterion now applies to an institution of further education that does not have degree-awarding powers. I can understand that, but I would like to read carefully what the Minister said. If a large proportion of, or "most", learning is delivered in a company, I would be concerned if it were still permissible for some other part of it, say a quarter, to be delivered by a FE college without degree-awarding powers. I recognise that the Minister is making a substantial response to my amendment on this—it is a case of looking at the detail.
	I come finally to the issue of progression. I attach great weight to this for two reasons. First, because it concerns something worked for and paid for by a student in an FE college; it is called a foundation degree. We know now that 54 per cent of students progress from that to an honours degree. It is, therefore, essential to them that there should be this opportunity for progression. There should be no doubt about it that an FE college has a progression agreement with at least one higher education institution, and that the criteria should extend beyond bare existence of some such thing. It should be attainable, as an additional commitment to study, in some recognised, maximum period. One does not want to have to take two or three years to do thefinal year. I see in the notes that we were given that1.3 years is regarded as a maximum—that seems right.
	I want to be absolutely clear about the intention of the Government. In his speech, the Minister said that the QAA has to be satisfied, at the time of submission, that the college has such an arrangement.
	We know that there are 700 foundation degrees under development. That is at the moment, and there will be hundreds more as time progresses. I want to be absolutely clear that the requirement applies not only to those that were being offered at the time of the application but will apply to any that are offered by the college at any time in the future. That seems fundamental.
	There is a second reason why I think this matteris important. The first reason was to do with a fair deal for the student. The second is to do with the assurance of quality. It is an assurance to me that the FE college must have an arrangement with an institution of higher education before it can offer a foundation degree. That seems to me a very important assurance that this foundation degree is of the nature of a degree in higher education in the United Kingdom. That is very important to every institution and to the nation given, as we recognised, the importance of the brand, which is not only worth billions of pounds a year in foreign exchange earnings but in attracting a good share of the ablest people in the world into our institutions. I see this as an assurance and one that I want to see going beyond the six years. As I understood what the Minister said, there will be a thorough check after six years, but thereafter it will be within the powers of the Privy Council to give an indefinite award. I want to besure that when that happens, it is nevertheless a requirement that there should be an articulation arrangement with at least one university for every course; otherwise, the student will be short-changed and will be at risk.
	I am concerned about this being a thin end of a wedge. Things do not stand still. As I recall, the polytechnics served an apprenticeship of 20 years to get their degree-awarding powers. Until then, they were under the guidance of the CNAA. But they got those powers. Now we have a situation in which it was decided that there should be foundation degrees, but from a university even though they are delivered by an FE institution. Now we are moving on to say, "No, they will do it in their own right". I am concerned that we shall move on from that to say, "Why should they not move to the full degree and become fully institutions in which a student can pursue the whole course in one place"? I can see advantages in that, but it changes the mission of the further education colleges. I am deeply concerned that they should stay with their mission because they constitute an engine room for skills for the whole economy. It is a natural aspiration for people to want to move up market, but we need people who concentrate on the engine room rather than go on to the bridge; they drive the ship.
	I am well content with what the Minister said on my amendment with regard to the students' voice and the review. I listened to what the Minister said on the other two points. He has gone a long way to meet me. I should like to read precisely what he said on franchising; I hope to be fully reassured.
	On my last point on articulation, which I saved to the end, this is an enduring concern which goes beyond six years. It is an issue on which I may ask the House to listen to me again at Third Reading.

Lord Walton of Detchant: My Lords, I can hardly believe that it is 14 years since the publication of the report of the Hamlyn Foundation's National Education Commission, which I was privileged to chair. At that time we were very concerned about a number of issues relating to higher and further education. There has been a series of major developments since that time which are to be warmly commended. One of the things that we recommended at the time was the establishment of learning and skills councils. We also recommended that there should be a progressive move to a greater degree of parity of esteem as between academic and vocational qualifications. The further education sector has done a wonderful job in those intervening 14 years in providing proper standards of vocational education for many individuals who would not otherwise have benefited from that kind of educational experience.
	But it is fair to recognise that there is considerable anxiety—which I know will soon be articulated by the noble Baroness, Lady Warwick—in the university sector about the powers which this clause will now grant to further education colleges. The foundation degree launched in 2001 was always intended to provide a vocationally focused and academically rigorous route into higher education with built in progression opportunities for foundation degree students who wanted to progress to honours degree level. There has been a rapid growth in foundation degree delivery, largely achieved through extensive and successful collaboration between higher and further education institutions. The universities have pointed out that more than 60,000 foundation degree students were registered by 2006 but that no university provided validation of those degrees without also providing tuition either directly or through a franchise agreement. The problem that I see with this clause is that it is likely to break, or at least to have the possible effect of breaking, that crucial link. Many universities are concerned that progression to higher education will be adversely affected and that higher education institutions will have less incentive to articulate foundation degrees with honours programmes, thus undermining the excellent progress that has been made towards building ladders of progression through lifelong learning networks.
	FE colleges do not currently have the power to award any other nationally recognised qualifications in their own right but only through recognised awarding bodies such as City and Guilds and BTEC. This clause will create an anomaly whereby FE colleges will be able to award HE-level qualifications but not those at FE level. Many HEIs have invested heavily in building collaborative relationships with FE colleges. These may be put at risk if they are in competition with each other over foundation degree programmes. I and many others who have a lifetime's involvement in the university sector have concerns about the whole principle articulated in Clause 19. The noble Lord, Lord Adonis, put the case very well and was very persuasive but I still cannot overcome those reservations about awarding foundation degree-awarding powers to FE colleges, whatever work the Quality Assessment Agency undertakes before they are given that power. I have concerns about the principles in Clause 19.

Baroness Morris of Bolton: My Lords, I thank the Government, the Minister, and in particular Bill Rammell, for the genuine efforts that they have made over the past few weeks to listen to our concerns and those of interested organisations and for coming forward with amendments to address these points.
	There is no doubt that the government amendments improve Clause 19 considerably and address many of the concerns of Peers and outside groups. The draft guidance and explanatory material that the Government recently provided has informed and advanced the debate in many areas.
	We are very happy that the Government have decided to accept our recommendation that a report is laid before Parliament four years after the powers in this clause are implemented. This will give us an opportunity to scrutinise whether these safeguards have been sufficient, and to consider whether more are needed, or whether the proposals we are looking at today are enough. That will also do much to reassure people that the Government's commitments on secondary legislation, which were given today and at other stages, are being effectively implemented. One of these ensures that the Privy Council will specify that further education institutions may only award foundation degrees for a period of six years before undergoing a comprehensive review by the QAA, prior to being considered suitable for awarding these powers in perpetuity. This review is critical and I would welcome any additional assurances that the Minister can offer on the rigour and thoroughness of the review. It is necessary to maintain the standards of foundation degrees and to ensure their continuing credibility in the eyes of students, employers and the higher education institutions that the students will, I hope, progress on to.
	Similarly, we are glad that the Government have tabled amendments to allow the Privy Council to restrict the abilities of further education institutions to accredit foundation degrees in other institutions. This franchising of the accrediting power has caused real concern, because of the enormous damage it could do to the foundation degree brand in a short time. Again, the Government's reassurances that these powers will not be given until an institution has successfully completed its six-year review period will do much to restore faith in this Clause.
	However, there is still one point on which we do not believe the Government have fully appreciated the strength of feeling. It has already been mentioned in other speeches: the relationship between higher education and further education, and progression from one end to the other of a foundation degree. The Government have assured us that they understand that this is one of the principal motivations for students undertaking a foundation degree, and have given some assurances about the continuing importance of articulation agreements between higher and further education, in order to ensure a good fit between the courses. On these Benches, we do not believe that it is enough.
	We fully support the principle behind proposed new subsection (6B) in the amendment tabled by the noble Lord, Lord Dearing, in his amendment on this Clause. Putting the continuing progression from foundation degrees to honours degrees in the Billis a necessary step for maintaining important relationships and to ensure the further success of foundation degrees. An unequivocal sign that a foundation degree is a higher-education-level qualification, with commensurate standards of course content, teacher quality and the chance to convert the qualification into a level 6 honours degree, with the equivalent one more year of full-time study, is indispensable. Without this safeguard, this clause could still lead to the eventual development of two tiers of foundation degree, with those awarded by a higher education institution being considered more credible than those awarded by a further education college. This is something that must be guarded against at all costs.
	To put a requirement for ensuring progression in the Bill will introduce nothing that the Government have not already committed to in secondary legislation, but will address one of the last serious concerns that we on these Benches, and many elsewhere, have. I hope that the Minister will be able to continue in the spirit of engagement with this debate, and will ensure us that he will consider this point and bring back an amendment that encapsulates this principle at Third Reading.
	One of the great pleasures of debating this Bill has been speaking to many wonderful people whom we have in the further education sector. I have spoken to a number of principals, who say that you have to be aware that people going into foundation degrees are working, and studying part-time. Quite often, they will finish the foundation degree, probably be quite tired and therefore will not continue immediately. Or, because they have a foundation degree and work for a big company, they may be transferred elsewhere and not go back to the university where they had the original articulation agreement. It is important that those points are taken into consideration. I hope that everybody from the universities will recognise that. We are dealing with a very different kind of student, and it is important to encourage them as much as possible to go into higher education.
	Although I understand the desire to consult students, there is some concern in further education colleges over which students will be consulted. Will it be those who are already doing foundation degrees, or those who are doing other things, but may think about going on to degrees? Will this consultation be binding on the council of governors? It is very important that when a further education college has gone to a great deal of work and effort to put something in place, that it cannot be overturned at a whim by somebody who may not even consider going on to do a foundation degree.
	I would also like the Minister to clarify something for the Association of Colleges' sister organisation in Wales, fforwm. There was some confusion during the debate in the Welsh Assembly on this Bill as to whether Clause 26 was sufficient to allow the Welsh Assembly to enact similar legislation to enable Welsh colleges to award their own degrees. Although many Welsh Assembly Members thought that it would be, surely the Welsh Assembly has not been given the power to amend the Further and Higher Education Act 1992, and so has no ability to extend the Privy Council's remit to cover Welsh further education colleges. Is this the case and, if so, can the Minister explain why the Government have not thought it necessary to extend the same potential to Welsh colleges as they have to English colleges—or, indeed, have they overlooked that?

Baroness Warwick of Undercliffe: My Lords, I rise to support Amendment No. 43, tabled by the noble Lord, Lord Dearing, and to welcome Amendments Nos. 41, 42 and 44, tabled by the Minister. In so doing, I declare my interest as chief executive of Universities UK.
	Since the Bill was published I have greatly appreciated the way Ministers and noble Lords from across the House have been willing to engage in really constructive debate about how Clause 19 could be improved. I do not want, at this stage in our debate, to rehearse the reasons I gave at Second Reading for believing that the measures in Clause 19 are a mistake. We are where we are. I recognise that the real task before this House is to define the improvements to the Bill that will prevent unintended consequences, about which I—and many other Peers—have had concerns.
	As the Minister said, the two issues that have become the focus of attention—and which have been reaffirmed by virtually every speaker—are addressed in Amendments Nos. 41 and 43, and relate to progression and the franchising of courses. I shall deal with franchising first. The Bill, as currently drafted, would give colleges that gain foundation-degree-awarding powers the right to validate courses delivered by other third-party institutions, both in the UK and abroad. The Minister has made some very welcome commitments on that front but, as I said earlier, further education colleges will be taking on primary responsibility for the quality and standards of their own foundation degree qualifications for the first time. To allow them to validate provision in third-party institutions at the same time would substantially increase the risks to reputation and quality management. The measures in Clause 19 already pose risks to reputation; therefore it is right to proceed cautiously.
	It is clear from what my noble friend has said that the Government have accepted this. Indeed the Minister's amendment gives the Privy Council the power to exclude the right to authorise other institutions to grant awards on behalf of an institution newly in receipt of foundation-degree-awarding powers. In the package of information published on 11 February it is made clear—and the Minister reaffirmed this—that the Privy Council will be advised to apply this restriction for the first six years only. As I understand it, at the end of that period a college will have to re-apply for foundation-degree-awarding powers and the Privy Council will be encouraged to grant unlimited powers, both in terms of time and the right to franchise their courses.
	I very much welcomed what my noble friend said in presenting his amendments. I can see why the Government have done this, but I do not, on reflection, believe that it goes far enough. The Government have made it clear from the outset that they envisage only a small number of colleges, which already deliver a large volume of foundation degrees and have substantial experience in this area, gaining these powers. I cannot believe that it was intended that the further education sector should, at any stage, be able to establish consortia whereby a small number of colleges validate foundation degrees in a wide range of partner colleges, effectively cutting universities out of the loop possibly across a whole region. That could happen; indeed, we have heard reports that that is already the intention of a group of London colleges.
	The point is that this could increase the likelihood of the foundation degree becoming seen as a signature FE qualification, and yet the Government chose to call it a degree because they wanted the explicit link with universities. The evidence from Foundation Degree Forward confirms the importance of this for prospective students and employers. Welcome though the Minister's amendments are, as are his subsequent assurances, we need to go further and I support Amendment No. 43 of the noble Lord, Lord Dearing, which would exclude in perpetuity the possibility of franchising by FE colleges.
	On progression, the other major issue with which we have been dealing, other noble Lords have emphasised the importance of students on foundation degrees having concrete options for progression on to honours-level study. Again, the Minister helpfully outlined how the Government intend to ensure that progression arrangements remain a key component of foundation degrees. That is enormously welcome but, again, it does not go far enough. I hope that the Minister will be persuaded in particular by the arguments of the noble Lord, Lord Dearing. They would make it a requirement that to successfully apply for foundation degree-awarding powers, a college must have secured agreements with at least one higher education institution to guarantee progression from all its foundation degrees to full honours level.
	The Minister has said that that is already secured through the current requirements of the academic infrastructure and, therefore, putting such a detail into primary legislation would be unnecessary. However, given the importance of this issue, which others have emphasised—and I can only reaffirm—the strength of feeling on it, and given that academic infrastructure could very easily be subject to change over time without reference to this House, it would be helpful to put the matter beyond doubt. If the Minister has no objection to the principle, which he has re-affirmed, that progression should be embedded in the criteria for gaining foundation degree-awarding powers, I hope that he will not object to making that explicit on the face of the Bill, as has been urged by the noble Baroness, Lady Morris, and the noble Lord, Lord Dearing.
	Finally, and briefly, I welcome Amendment No. 44, which would ensure that the arrangements introduced by the Bill were subject to review after four years.I also welcome the statements in the material published by the Department for Education and Skills on 11 February to the effect that the draft criteria will be amended to time-limit the initial award of the new foundation degree-awarding powers to six years. Both steps seem eminently sensible.
	I should like to record my thanks to the Minister for the way in which he has responded to our debates in Committee, has anticipated our arguments this evening and has given us further reassurances. We are making good progress and I hope that we can persuade him to go just a bit further on the issues of franchising and progression.

Baroness Walmsley: My Lords, we on these Benches have always supported the amendment of the noble Lord, Lord Dearing, and note with pleasure the Government's intentions in relation to most of the matters within it. The guidance published in advance of this Report stage has been helpful. Noble Lords will note that we on these Benches have not re-tabled our amendments which sought to restrict award-making powers to particular courses or departments, given that we have been convinced during our consultations since Grand Committee that any college which reaches the quality required by the Privy Council would have sufficient internal quality control procedures to ensure that such a college was not likely to put on the market a degree from a weak department. The market would sort that out, anyway.
	On progression, I shall not reiterate what has been said by three noble Lords, but we share their concerns. I have a feeling that there will be some chat about this matter between now and Third Reading, and we might come back to it. I am particularly keen on the ban on franchising in paragraph (6C) of the amendment tabled by the noble Lord, Lord Dearing. We believe that the whole matter of degree-awarding powers is a major step that should be carried out with extreme caution—a bit at a time and with appropriate safeguards. Therefore, we welcome Government Amendments Nos. 41 and 42 and the thought that the Government have put into making appropriate arrangements for work-based learning.
	I note that paragraph (6D) in the amendmentof the noble Lord, Lord Dearing, is a sort of probationary period and I welcome the statement in the guidance that a college would have to be reviewed after six years, rather than four. It seems appropriate that the number of years should be consistent across the sector. But, from the point of view of the student, to have a foundation degree from an institution which, at the end of the probationary period, lost the power to award degrees, would call into question the validity of the degree that the student had already obtained. Is there any way of safeguarding the quality of that degree during the probationary period, should the institution not retain degree-awarding powers after the six-year period? Perhaps a mentor university could be appointed who could guarantee the quality of the degrees awarded during the probationary period.
	In the interests of the student, some though will need to be given to that if that happens, because not every college will get through its probationary period and go on to be given powers to award foundation degrees in perpetuity. At least one or two could very well not make it, and we need to think about the degrees obtained by such students. Can the Minister consider that idea?

Baroness Blackstone: My Lords, like other speakers in this debate, I am grateful to my noble friend the Minister and to the Minister of State for Lifelong Learning, Further and Higher Education for taking part in a number of conversations on how we might improve Clause 19. As the Minister knows, I am unhappy about the introduction of this change by the Government, but, as my noble friend Lady Warwick has said, we are where we are, the pass has now been sold and those of us who were against the principle now have to think about how we qualify the measure to ensure that damage is not done.
	At this stage, we need to focus on the commitment made by the Government at Second Reading, which has not yet emerged in this debate, to limit the number of FE colleges that would gain power to validate their own foundation degrees. It was said that that would involve only a very small number of colleges of the highest quality. That seems to have been forgotten in this debate.
	We have had much discussion this evening on ensuring progression, on which I wish to say more, because I share the concerns expressed by other speakers. As they have said, we need to proceed with caution, particularly on franchising, to which I wish to return, also. I also want to say a little more about the review, because I would like to learn more from the Minister about its precise nature.
	So far, I am not convinced that we have anything to hold on to in ensuring that this power will not become exercisable by all, or nearly all, FE colleges. We need some minimum threshold for the number of students pursuing HE courses in further education colleges before they move to validating their own higher education programmes in the shape of foundation degrees. There needs to be a significant number of such students to provide an appropriate environment for them and the economies of scale necessary to provide the appropriate library, laboratory and IT facilities cost-effectively. However, I strongly welcome the Government's proposal for what is, basically, a six-year probationary period. It is a step in the right direction.
	I am also glad to hear that further education colleges will not get the powers established by Clause 19 without having some articulation arrangements. However, there is no requirement in the Bill; as speakers from all sides of the House have made clear, that is what we need. Reiterating what others have said, I hope that the Government will come forward at Third Reading with an amendment that puts it in the Bill.
	Having worked closely with the Association of Colleges for some years, I hate to say this, but I find some of its briefing a little worrying. Of course, as the noble Baroness, Lady Morris of Bolton, has said, many students who do foundation degrees do not want to progress to honours degrees, but many want to. The AoC also claims that, although some students may want to progress in another direction, they do not want to do honours degrees. Again, this is true; they may want to acquire professional qualifications instead. However, many universities are providingjust such programmes to achieve professional qualifications, especially the post-1992 ones. There should be an articulation between foundation degrees and these sorts of qualifications, as well as appropriate honours degrees. I strongly support what others have said about the need for further thinking about this.
	Given the Government's commitment to rigorous quality controls, it seems odd that further education colleges will not only be able to validate their own degrees but will eventually be able to validate the degrees of other institutions and form consortia of FE colleges to do that for them. That takes FE colleges away from their main mission of delivering level 2 and 3 qualifications to the many hundreds of thousands of young people and adults who need them to gain satisfactory jobs and to have worthwhile careers in our economy, where these skills are in all-too-short supply. I have to confess that I found it a little hard to follow everything that the Minister was saying about what is being put into the guidance. I feel that everything that all the concerns that my noble friend Lady Warwick expressed are valid. Frankly, I do not think that we should ever give FE colleges the role of franchising. I do not think it is part of their mission to undertake such work.
	I strongly support proposed new subsection (6D) of the amendment tabled by the noble Lord,Lord Dearing, and Amendment No. 44, which the Government brought forward, for which I am grateful to them. However, such a review should be independent, and that should be provided in the Bill. It should not be done by civil servants in the Department for Education and Skills, however much I respect those officials. Would the Minister confirm that it is the intention that this review should be independent?
	Such a review should look at the impact of Clause 19 on FE colleges in a very general way. It should not simply be about the quality of foundation degrees. The review should look at the clause's effect on the mainstream work of further education, on the vocational programmes that they provide for adults and young people below level 4 and on important areas such as basic skills courses for adults. As the noble Lord, Lord Dearing, said, there is a longand rather sad history of post-school education institutions neglecting their lower-level work or even dropping it as soon as they are encouraged to start focusing on higher-level qualifications. Were that to happen, it would be a disaster for our FE college system and indeed for the nation.
	Any review should also look at the clause's effect on universities. The Minister said that he did not think that existing partnerships would be endangered. I am puzzled as to why he thinks that they will not be, because—this certainly would apply in my own institution—were some of the FE colleges with whom we are in partnership to decide to validate their own foundation degrees, it would damage our partnership. They would float off to do it on their own. I am not sure what the basis of my noble friend's claim was. A review needs to look at the wider questions of the clause's effect on post-1992 universities. We must remember that those universities have invested a great deal of time, effort and resources into foundation degrees and in collaborating with the FE system. By encouraging further education colleges to become direct HE providers, rather than continuing with the well established system that we have—which I thinkis working well, contrary to what some further education college principals have claimed—we could well undermine those very universities in a quite deep and unfortunate way.
	We have to be aware that the number of qualified students coming forward to fill places for foundation degrees and even for honours degrees is growing pretty slowly. There are now as many places to fill as there are qualified students to fill them. What do the Government believe will happen when the anticipated demographic downturn takes place? I have enormous sympathy with the vice-chancellor of Bolton University, who has argued that widening participation in higher education through FE may destroy the capacity base of widening participation universities such as Bolton to deliver the Government's agenda. Universities rightly have to compete to recruit students. I have nothing against that; it is absolutely fine. However, I question whether we should be introducing, developing or creating a divided market between FE and universities when demographic decline is predicted. FE colleges validating their own foundation degrees will understandably want to build their HE capacity. Who can blame them? This could lead to some new universities undershooting on their HEFCE contracts and having to be shored up by HEFCE, at considerable cost to the taxpayer. It could also, of course, lead to them being forced to make substantial redundancies, which will also add to the taxpayer's costs.
	Surely what we want to see in our post-school educational system is a coherent system with clarity about the role of different institutions. Clause 19 reduces that clarity by muddling the roles of further education colleges and higher education institutes. At a time when we want to see the ambitious targetsset by the Leitch report on intermediate-level qualifications being met by further education colleges, it encourages them to expand in a quite different direction. Moreover, it could leave some widening participation universities seriously exposed. I hope, therefore, that the Minister will agree that any future review, interim or final, will reach beyond the very important questions of quality, progression and franchising to these wider issues.

Lord Adonis: My Lords, when I presented the government amendments, I spoke for 22 minutes, which had my noble friend the Chief Whip scurrying into the Chamber, wondering whether I was launching a filibuster against my own Bill. I dealt with virtually all the points raised—I did not necessarily persuade noble Lords—but I did present the Government's case, so I hope that the House will forgive me if I do not reply again to them. I want to go to the heart of the issues in the amendment tabled by the noble Lord, Lord Dearing, around which the debate has focused, and summarise where I thinkwe are.
	I took the noble Lord to say that he believed that we were broadly there on student voice, on a probationary period for further education colleges in being awarded degree-awarding powers in the first instance, and on franchising, subject to him studying carefully the long explanation that I gave on how the arrangements will work and the controls that will be in place. The fourth issue was articulation agreements, in respect of which I believe that we have in place the most robust requirements in what we will say in the QAA's draft criteria document, which I shall make available to noble Lords shortly. However, I hear all the points made by the noble Lord, Lord Dearing, and others, and undertake that my honourable friend the Minister for Further and Higher Education and I will consider them further to see whether it might be advantageous to have something in the Bill when we come back on Third Reading.
	The review after four years was warmly welcomed on all sides. My noble friend Lady Blackstone asked whether it would be independent and whether the scope could be broadened. I undertake that we will consider both those issues, and I will return to the House on them later.
	The only other point on which I think I should respond now is that of Wales; having not been able to give an answer in respect of Wales earlier, I certainly do not feel that I can let it pass a second time.The noble Baroness, Lady Morris, asked whether Clause 26 would be wide enough to allow the National Assembly for Wales to pass measures similar to Clause 19. The answer is no. She is correct that Westminster would need to legislate for that to be possible, unless an Order in Council were made to give the National Assembly the measure-making power. However, it is not the policy of the National Assembly to take that power at present, so the issue does not arise.
	On that basis, I hope that the noble Lord, Lord Dearing, will feel able not to press his amendment.

Baroness Barker: My Lords, in the absence of my noble friend Lord Carlile, who is away due to commitments to do with his role in relation to terrorism, it is my privilege to move AmendmentNo. 73 on his behalf. The Minister will probably have guessed that this is a probing amendment. It relates to concerns that have been voiced at earlier stages in our debates by, among others, the noble Baroness, Lady Knight of Collingtree, and my noble friend Lord Carlile. It reflects a concern about people who may lack capacity and be discharged from hospital, perhaps into a residential or nursing home, and who may at that point be incapacitated, temporarily or for a longer duration.
	The purpose of the amendment is simply to establish whether the Bournewood provisionswould apply to people in that situation. It wouldbe enormously helpful if the noble Baroness could simply address that question tonight. I beg to move.

Baroness Ashton of Upholland: My Lords, I shall speak also to Amendment No. 84. I want to move government amendments that enable all the regulations relating to deprivation of liberty assessments to be made in the same set of regulations that must be laid before, and approved by, each House of Parliament.
	As noble Lords are aware, as things stand, mostof the regulations relating to deprivation of liberty assessments must be made under the affirmative resolution procedure. However, the Mental Health Bill provides that some regulations relating to the deprivation of liberty assessment procedure are tobe made under the negative procedure; namely, prescribing the period or periods within which assessors must carry out assessments; prescribing any information that a best-interests assessor must provide to an eligibility assessor; and modifying the usual deprivation of liberty assessment procedure when the supervisory body and managing authority are the same; for example, when a local authority provides a care home.
	The aim is to make things easier for everyone, and supervisory bodies in particular, in that they willbe able to access all the regulations relating to deprivation of liberty assessments in one place. Where the assessment regulations are made in one set, as will be the case under this amendment, they will all be subject to the same level of parliamentary scrutinyfor England—that is, the affirmative procedure. In Wales, the regulations will be subject to equivalent procedures by the National Assembly for Wales. I beg to move.

Baroness Barker: moved Amendment No. 75A:
	Schedule 6, page 73, line 4, at end insert—
	"No charges for accommodation, care or treatment provided to P while deprived of liberty
	2A Where the managing authority deprives P of his libertyby detaining him as mentioned in paragraph 1(2), the appropriate NHS body or local authority which has authorised the detention shall make arrangements for the provision of the accommodation with care or treatment, and it shall be free of charge."

Baroness Barker: My Lords, we return to a subject that we debated in Committee. Anyone who has read the record of our proceedings will know that the matter is, in essence, fairly straightforward; namely, whether it is right for a person who has been deprived of his liberty to have to pay for the period in which he is subject to authorised detention. I think it would be entirely accurate to reflect our Committee stage by saying that we on these Benches feel that that would be wholly wrong and that the Government are of a different view.
	There are two reasons for bringing this matter back. The first is to underline its importance. We are talking about people in care homes and hospitals who are not free to leave and who are therefore unable to remove themselves from the situation. They are being detained and having to pay for it, and, in our view, that is simply wrong. It places them in a unique position in that they are unequal to anyone else who is lawfully detained.
	The detention is subject to Article 5 of the European Convention on Human Rights, as is detention under the Mental Health Act. Article 14 prohibits unjustified discrimination in the application of the other articles, including Article 5. There is not necessarily any difference between people who are detained under Bournewood provisions and people in the same accommodation who are looked after under Section 117 of the Mental Health Act. They may both lack capacity, be compliant and have a mental disorder or disability and need residential care—perhaps a high level of care—and they can both be subject to legislation in their own interests; yet one person would be charged for being there and another person would not.
	Not surprisingly, this point was picked up by the Joint Committee on Human Rights in its report on the Bill. The committee states at paragraph 91:
	"In our opinion, to charge someone for accommodation in which they are deprived of their liberty potentially engages civil rights and obligations, and therefore the right of access to a court to determine those rights under Article 6 of the Convention. There is a potential discrimination for the purposes of Articles 5 and 6 and Article 14, in that a person deprived of their liberty in their own best interests in a hospital will not be charged for the detention whereas a person deprived of their liberty in their own best interests in a care home will".
	The two other points that I wish to raise were matters that we did not get a chance to talk about on the previous occasion because we were rather hurried. I refer to the purpose behind the amendment. In her reply to me last time round, the noble Baroness said that, if we were to make the change that I was suggesting so that such care was free, there would be a perverse incentive for relatives to ensure that their relatives came under the Bournewood provisions in order to evade paying for the care. I am not wholly convinced by that argument. I can see why the Minister made it, but our reason for bringing forward the amendment is to get relatives and everyone else to look at the standards of the care packages that are provided for people who lack capacity.
	My second point concerns the status of independent care homes. This time, the amendment would ensure that, when a person was deprived ofhis liberty, the supervisory body would make the arrangement and contract with the care home. The provisions to safeguard the Bournewood-type patients throw into stark relief the fact that residents in independent care homes are not protected by the Human Rights Act in the same way as patients in hospitals or residents in local authority homes. That is because independent care homes are not considered to carry out public functions. It seems rather irrational that a care home manager in one establishment can identify a potential deprivation of liberty and yet such deprivation may be treated completely differently elsewhere because the place in which it is happening is not deemed to be carrying out a public function.
	For those good reasons, I thought that I would again try to persuade the Minister to think about the matter and perhaps to persuade her colleagues that there may be a bit more at stake here than simply public finance. I beg to move.

Baroness Barker: My Lords, I thank the noble Baroness for that full answer. As I anticipated, she has not changed her mind. Neither have I, but it was important for us to put our views on record, not least because I believe that this will be a matter to which courts will turn their attention. For that reason, ithas been a helpful exchange of views. I beg leave to withdraw the amendment.

Baroness Ashton of Upholland: My Lords, I shall speak also to Amendments Nos. 77, 82 and 83. This series of government amendments will give family and friends or any other concerned person a way to triggerthe safeguards if they think that a person is being deprived of liberty and that hospital or care home managers are failing in their duty to seek authorisation.
	I pay tribute to noble Lords who raised this in Committee and draw the attention of noble Lords to the role that stakeholder organisations are playing in helping us to get this very difficult policy right. That helpful and constructive dialogue over the past few months has been very valuable. I put that on record and state that the amendment is intended to address one of the concerns that they have rightly raisedwith us.
	In Committee, the noble Earl, Lord Howe, and the noble Baroness, Lady Murphy, made the point that the safeguards would be further improved if action could be taken to initiate the authorisation processby someone other than the hospital or care home managers when there is concern that a person is deprived of liberty. I thank them for raising that matter and thank the noble Lord, Lord Rix, who would have raised the matter had he been well enough to be with us in Committee, but who raised it in spirit none the less.
	I undertook to take the matter away and consider whether we could achieve that without, as noble Lords will remember from our discussion, blurring the issue of who should have statutory responsibility for obtaining an authorisation if a person needs to be deprived of liberty to provide high quality care in their best interests. I think we were all agreed that that duty must rest with the hospital or the care home managers. I remain convinced that the best route to follow in such cases is to take the matter up with the care home or hospital in question. They can and, in most cases, would then apply for authorisation. Sometimes, they might be able to allay the concerns of relatives or friends. There may be a relevant order of the Court of Protection or an authorisation in place of which the individual querying the matter is not aware.
	I recognise that family and friends would be in a stronger position if it was known that they could take a straightforward step to make sure that a person was assessed. The amendments provide exactly that. They will enable anyone to take action if they have not been able to sort out the matter by asking the care home or hospital to apply for authorisation. They can apply to the supervisory body, which will appoint a best interests assessor to consider whether a person is in fact deprived of liberty. An IMCA will be appointed if there is no one among friends and family to consult. If the assessor identifies that an unauthorised deprivation of liberty is taking place, the full assessment process will go ahead as if an authorisation had been applied for. If the care home or hospital considers that the care plan needs to continue while the assessments are carried out, it will have to issue an urgent authorisation and obtain a standard authorisation with seven days. The amendments would not affect the right to apply to the Court of Protection to hear the case.
	I am confident that the amendments achieve my aim, which is to ensure that clarity remains about the duty of care homes or hospitals to apply for authorisation if it may be needed. Concerns about deprivation of liberty are dealt with, first, by the care home or hospital concerned. If someone thinks that a person may be deprived of liberty unlawfully, an assessment can be triggered. I hope that noble Lords will welcome and accept the amendments.

Baroness Barker: My Lords, when I was little, if I had said to anyone that I would one day be a Member of your Lordships' House, they might have thought that I had delusions of grandeur. If I had told them that I would one day be understudy to the noble Lord, Lord Rix, I think that they would have called the doctors. Today, it is my privilege to be the noble Lord's understudy. I will try to do him justice.
	I pay enormous tribute to him. Although he has not been part of our debates, he has worked so hard behind the scenes to plug away at these issues, which are most important. I join the noble Baroness in sending the best wishes of the whole House to him. I thank the noble Baroness, as the noble Lord would, if he were here, because she has fully addressed the concerns that we raised with her earlier. What she has done is right.
	Those of us who had the privilege to take part in deliberations on the Mental Capacity Bill thought about and discussed long and hard the role and involvement of relatives in many decisions on behalf of people who do not have capacity. Often, rightly, we decided that relatives should not play a role. This time, we are absolutely right to say that they should and to exercise that tremendous safeguard for people who are enormously vulnerable because they are deprived of their liberty, as happened in the case that went to the European Court. The noble Baroness rightly identified all the things that matter to them, such as having access to information and the requirement that once a deprivation has been noted, it must be registered in a number of places. On my behalf and that of the noble Lord, Lord Rix, I thank the noble Baroness very much for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland: My Lords, it is always worth having another go to see if I can be bent if not broken into looking at a point again. The noble Baroness will know that I have met representatives from a number of organisations who raised thisissue with me. I thank them for their time and consideration in coming in to talk to me about it. I am not going to go as far as the noble Baroness wants, but I hope that in what I am able to say, she will be given enough comfort perhaps to offer me half a thank-you on behalf of herself and the noble Lord, Lord Rix.
	I agree completely with the principle lying behind all the noble Baroness has said: we want to deprive people of their liberty only for the shortest time possible. My first point is that that will be made perfectly clear in the code and training materials; it is absolutely essential. That is why we are setting the authorisation period on a case-by-case basis on the best interests assessor's recommendation, which will be based on the person's best interests in the particular circumstances and the likelihood of change. I will add material to the code stating that authorisation should be recommended for 12 months only if the assessor was confident that there is unlikely to be a change in the person's circumstances within that period. There will be people—noble Lords will be able to think of them—about whom we can be sure that that is the case. The noble Baroness has expressed concern that people should not reach for the ultimate ability to go to 12 months when a shorter period would be better. The point was also made by the noble Earl, Lord Howe, in Committee.
	The review and Court of Protection safeguards mean that if the deprivation of liberty is no longer needed, it can and will be ended. We will make sure that information and support is provided for families and carers to ensure that they can be effective in helping their loved ones to make use of these safeguards, and we shall discuss that support later in our discussions this evening. I am therefore confident at this stage that we are putting in place everything required to deliver our aim of making sure that the deprivation of liberty does not continue longer than it has to. There will be no default to 12 months, so I do not support reducing the maximum period specified in the Bill because I do not want to have unnecessary assessments taking place. They would merely divert resources from frontline care. The noble Earl, Lord Howe, said in Committee said that we could not have it both ways. I could not say that the case would not arise for all that many people and then argue that it is a resource problem. The truth is that however many cases arise—I hope that there will be few, but there will be some—it is nevertheless still a resource issue, although I agree that it is not a huge one.
	I also do not want people or their families disturbed and unsettled in circumstances where it is quite clear that there will be no change, but I accept that providing a period of 12 months with no ability to change it does create an issue if I am proved to have been inaccurate in my assessment, or indeed if a period of six months was not correct, or that over time it is considered that we ought to be able to settle on another period. So I will ensure that when the Bill goes to another place, a power is taken in England and Wales to reduce—and only to reduce, not to increase—the maximum period at a future date if monitoring of the operation of the safeguards convinces the Government that this is necessary. The monitoring body will report to the Secretary of State and will include these statistics. That will be published and made available in the Libraries of both Houses, so the specific information gathered by the body looking at this issue will be put in the public domain. If that information leads to the conclusion that we need to amend the period of 12 months down to a lower figure in order to address anything that may have arisen, the power will be in place to do so.
	I hope that I have achieved by another route what the noble Baroness is seeking and that she feels able to withdraw her amendment.

Baroness Barker: My Lords, in moving Amendment No. 76B I shall speak also to Amendment No. 80A with which it is grouped. We return here to one of our running discussions not just about the Bournewood parts of the Bill, but throughout the legislation as a whole: the issue of advocacy. The amendment would ensure that the relevant person or,
	"(i) anyone named by the person as someone to be consulted,
	(ii) anyone engaged in caring for the person or interested in his or her welfare,
	(iii) any donee of a lasting power of attorney granted by the person, and
	(iv) any deputy appointed for the person by the court",
	can have access to an independent mental capacity advocate during the assessment process if they feel the need for it. It will also ensure that a person or their representative can have access to an independent mental capacity advocate at any point during the authorisation period if they consider it to be necessary.
	At this stage I do not wish to restate the many points we have made throughout our consideration of this Bill and when we discussed the Mental Capacity Bill as it went through the House about advocacy being the cornerstone on which the whole matter rests. When a person lacks the capacity to consent to their care and treatment, they are likely to need support in expressing their views. While it is right that some of the representatives I have cited in that list may have the capacity to act as an advocate for a person, they may not truly be capable of acting as an advocate for the person's welfare as opposed to, say, their financial circumstances. That is the reason for specifying the list and providing that a person should have access to an advocate during the assessment process.
	An advocate can enable detained patients to challenge decisions made by professionals where they lack the capacity to do so themselves. Again, when considering the proposals for the reform of mental health provision, the Joint Committee on Human Rights stated:
	"Even the most elaborative and collaborative system for conferring and protecting rights is unlikely to be fully effective unless, as a last resort, the patient has access to practical means of exercising and, if necessary, enforcing their rights".
	For these reasons, I beg to move.

Baroness Ashton of Upholland: My Lords, I hope that I can make the noble Baroness half happy. Let me start with when someone is being assessed. The way that we have tried to tackle the matter is that we have made sure that there is a professional appointment who is independent of the provider and the decision-maker about their care. His role is to establish and report on what is in their best interests. We call them the best interests assessor, the job title fits the job and that is what they have to do. They are required by law to take into account the views of all the people listed within the amendment. They have to have the skills to communicate with those people and to help them input their views.
	I said in Committee that I would strengthen the guidance and the draft code of practice on involving friends, family and carers, and I will do it; I will cover the need to keep them informed so that they know how to get involved in that process and the need to support them to play their part including, for example, addressing language and communication needs that may exist. I do not want to go so far as saying that we need the support of an IMCA at that point, unless there is no one available to consult.We want the best interests assessor to approach interviews with friends and family from the viewpoint of the best interests of the person who may be deprived of their liberty, which may not always be the same as the interests of the family. It will be in many cases but it will not always be. That is as it should be. Introducing an IMCA to help and support the family could shift the balance away, and what we are interested in at that moment is the best interests of the person being assessed.
	The families tell us often that what they really need is information. We want to make sure that families understand and are provided with information about the safeguards, about how to be involved and who to speak to in their case, and we will be working with service users and families to make sure that we get that right. Once an authorisation is granted, the role of the best interests assessor falls away and they are extremely sympathetic to the point that was made in Committee and has been made by organisations that I have met—that a family member or friend who is acting as a representative could not have a level playing field of having access to quality advocacy support. We are going to do something about that: as my noble friend Lady Royall said, we are looking at advocacy more generally and coming back to it in another place. I would like to add that into that mix because in a sense it is about the same issue, but we will do so and make sure that we have advocacy support available to families and friends during an authorisation and beyond in the way that the noble Baroness would expect. I hope that on the basis that the cup is half full she will withdraw her amendment.

Baroness Barker: My Lords, this amendment would impose a duty to give information about unauthorised deprivation of liberty. It would place in the Bill the Government's amendment in the draft code of practice—here I foreshadow a debate that we will move on to in a few minutes—that the supervisory body should inform certain people of the fact that a request for an authorisation was turned down. It would place in the Bill the Government's proposal in the code of practice that the supervisory body commissioning the care must do so in a way that makes it possible for the managing authority to provide the care in accordance with the outcome of the assessment process.
	In addition, the amendment seeks to ensure that there is a mechanism for identifying cases where a managing authority has failed to provide the care in accordance with the outcome of the assessment process and for referring such cases to the relevant inspection body. I can guess what the Minister will say about the status of the code of practice and matters being placed on the face of the Bill, but we are talking about the detention of people and the deprivationof liberty; we are talking about people who are particularly vulnerable in that they lack capacity. In comparable situations in which people are detained, the force of statute is often brought to bear. We on these Benches believe that there is an equivalence and that therefore the matter should be enshrined in the Bill.
	While we recognise that it may be unnecessaryto inform an inspection body every time an authorisation is turned down, we believe that it should be informed if the supervisory body has any concerns that someone is still being deprived of their liberty when it has been decided that that deprivation is not in the person's best interests. The supervisory body is the most appropriate body to fulfil the role of monitoring the situation and reporting any concerns to the relevant inspection bodies. That in a nutshell is the reason for the amendment. I beg to move.

Baroness Ashton of Upholland: My Lords, let us begin from the principle that, if an application is made for an authorisation of deprivation of liberty and it is not granted, the deprivation of liberty should not take place, as it would be unlawful. We consider it extremely unlikely that any managing authority would recognise and comply with a duty to request an authorisation of a potential deprivation of liberty and then go ahead with an unlawful deprivationof liberty if the authorisation was not granted, particularly—this is an important safeguard—as the outcome would be known by the commissioner of the care, by the friends, by the family, by the person concerned and by any IMCA who was involved.
	The first two sub-paragraphs of the amendment do the same as the current paragraph 58. My difficulty comes with what follows in sub-paragraphs (3) and (4), because it does not work. They assume that if the authorisation has been turned down the reason is that the proposed care is not in the person's best interests, but that might not be the case; for example, the assessor might have concluded that the care being suggested would not of itself be a deprivation of liberty, in which case authorisation could not be granted and would not be needed. They might decide that the use of the Mental Health Act needs to be considered. They might decide that the person does not have a mental disorder or that the person has the capacity to consent.
	The sub-paragraphs assume and indeed require that the person will continue to be cared for by the managing authority that made the application, but that may not be in the person's best interests. If authorisation is not granted, decisions will need to be made about how to avoid the deprivation of liberty. The assessor's report will inform the decision, but there are likely to be a number of options. The person may need to be in a different care home or in hospital. The person may remain in the same place but thecare plan may need to be reviewed or a proposed restriction not instituted. The person may remain in their own home.
	The commissioning and the care planning decisions will have to be taken in the person's best interests, as we have already discussed, with the views of families, carers and friends taken into account. Our difficulty is that we are dealing with many varied circumstances. I have tried briefly to illustrate some of them. Undoubtedly, cases and circumstances will arise that I have not outlined and we cannot foresee, and the difficulty is that we cannot define in statute what should happen in every case. That is why we have taken the choice to address the issue of what should happen when authorisation is turned down in the code of practice.
	I will read a little bit:
	"The managing authority is responsible for ensuring that they do not deprive a person of their liberty without an authorisation. The commissioners of care are responsible for ensuring that the care package is commissioned in compliance with the Bournewood safeguards. The action they will need to consider if a request for an authorisation is turned down will depend on the reason why the authorisation has not been given".
	We then give examples, some of which I have indicated. The monitoring of the safeguards that we will establish will be a further protection against unlawful deprivation of liberty. We also state in the code that the supervisory body should consider alerting the monitoring body if it is concerned that unlawful deprivation of liberty will not be avoided.
	On the basis that there are so many different circumstances and that the code, which has statutory effect, will tackle that effectively, we believe that there is nothing between the noble Baroness's objectives and mine, but that we need to tackle this issue in the way that I have suggested. I hope that she will feel able to withdraw her amendment.

Baroness Ashton of Upholland: My Lords, I shall also speak to Amendment No. 79. These amendments enable us to increase our ability to prescribe the training and skills of assessors. Schedule 6 to the Mental Health Bill provides for the insertion of Schedule A1 into the Mental Capacity Act 2005.Part 9 of Schedule A1 contains provisions about assessments under the schedule. Included withinPart 9 is a power to make regulations about the selection and eligibility of people to carry out assessments under the schedule.
	The Bill, as currently drafted, states that the regulations may make provisions about the qualifications and experience of assessors. We would like to widen the regulation-making power to enable the Secretary of State and the National Assembly for Wales to specify training that assessors must have undertaken in order to be qualified to carry out the various deprivation of liberty assessments, and the skills that assessors must have. For England, we will develop training modules that will link to the Mental Capacity Act training programme and a competence framework for deprivation of liberty assessors that will be consistent with competences being developed for professionals fulfilling similar roles under the Mental Health Act. With regard to Wales, this will be a matter for the National Assembly for Wales and the regulations prepared by it.
	We believe that the extension of the regulation-making power is important in enabling us to ensure that people undertaking assessments in connection with the deprivation of liberty safeguards are properly qualified to do so, and that the training and skills of assessors are the same everywhere in the country. I hope, therefore, that noble Lords will accept the amendments.

Baroness Ashton of Upholland: My Lords, in moving this amendment I pay tribute to the noble Lord, Lord Rix, again, the noble Baroness, Lady Barker, and the noble Earl, Lord Howe. This government amendment strengthens the arrangements for dealing with a case where deprivation of liberty is not authorised because it is not found to be in the person's best interests but the best-interests assessor reports that the person is in fact already being deprived of their liberty.
	The safeguards that are already in the Bill areas follows. The person concerned, the care home or hospital, any IMCA involved and all interested parties consulted by the best-interests assessor would be told that the authorisation request had been turned down. The person concerned, the care home or hospital and any IMCA involved will be given a copy of the best-interests assessment. They will know the reasons why the assessor considers that the person is deprived of their liberty and the reasons why it is not in the person's best interests.
	The draft code of practice states that the best-interests assessor should write their report in a way that will help commissioners and providers of careto avoid depriving the person of liberty, including making recommendations; that the supervisory body should liaise with the hospital or care home to ensure that the unauthorised deprivation of liberty does not continue; and that the supervisory body should alert the monitoring body if it has concerns.
	Your Lordships will see from what I have said that safeguards have been provided, but I agree with the view expressed in Committee about the importance of making sure that action is taken if something has gone wrong and a person is deprived of liberty when they need not be, so I undertook to look at whether we could strengthen the safeguards.
	The amendment will require the supervisory body to inform in writing the person concerned, the managing authority of the care home or hospital, any IMCA involved and every interested person consulted in the best-interests assessment that an unauthorised deprivation of liberty is taking place. That will strengthen the safeguards in two ways. First, it will explicitly draw attention to the fact that the way in which the person is currently being cared for is unlawful. It does not depend on people understanding that from reading any assessment report. Secondly, it includes family members consulted by the best-interests assessor among the people to be informed. I also committed to look again at the code, and we will include in the next draft more about the value of involving families in deciding how to end the deprivation of liberty and examples to make it clearer when the monitoring body should be involved.
	I am convinced that the safeguards in these amendments will ensure that any unauthorised deprivation of liberty is ended promptly. Again, I pay tribute to the noble Lords who invited me to consider doing so. I hope noble Lords will accept the amendment.

Baroness Barker: My Lords, I return to a matter that we discussed in Committee: the proposed duty to provide a second-opinion doctor where someone who has been deprived of their liberty, subject to the Bournewood provisions, requires serious medical treatment. We discussed that matter at some length and talked about the sort of treatment it could apply to, such as ECT, therapeutic sterilisation or artificial nutrition and hydration.
	A significant percentage of people covered by these proposals are patients who would meet the criteria for detention under the Mental Health Act but for their compliance with the treatment proposed for them,or, in some cases, because they are unaware of the treatment being administered to them. Many of the others will be receiving medication and treatment for medical or physical conditions, or both. Under the Mental Health Act there is a statutory second medical opinion procedure for medication beyond three months—the same applies for ECT—and this is an attempt to replicate that safeguard.
	The Government have said that, under the Mental Capacity Act, an unbefriended person has the right to an independent mental capacity advocate who can request a second medical opinion to help them to decide whether the treatment is in the person's best interests. I accept that that is a valuable safeguard. However, this amendment would serve a different function. It is not about supporting the patient and ensuring that what is proposed happens; rather, it provides scrutiny of the medical decision and prior authorisation of the treatment by someone qualified to give it.
	The report by the Joint Committee on Human Rights on the Mental Health Bill identified an omission of something in this area that would have promoted or enhanced human rights. It argues for,
	"effective supervision and review of decisions to give treatment without consent for mental disorder",
	where that,
	"involves psychotropic medication or other significant interferences with physical integrity",
	such as ECT.
	Apart from the appointment of an IMCA, the checks in the Mental Capacity Act are retrospective. The committee considered that "effective supervision and review" required more than common law and the provisions in the Mental Capacity Act. The committee recommended that that be remedied through a second-opinion system or a visiting inspectoral body, such as the Mental Health Act Commission.
	We discussed this in Committee, when the noble Baroness did not agree with me that there was a need for a second-opinion appointed doctor. She felt that it would be too great an imposition. She cited cases where people had need for heart surgery or other treatment. I should make it clear that this does not apply to emergency situations, although it is about serious treatment. I doubt whether an IMCA would have the technical knowledge on which to decide whether the information they were given by a doctor was correct. That is the point of difference between us, and it is why I return to this amendment. I beg to move.

Baroness Ashton of Upholland: My Lords, I shall have another go at convincing the noble Baroness that the provisions already contain the safeguards that she, reasonably, seeks in her amendment. I know that the noble Baroness does not mean this, but "deprivation of liberty" concerns only that and is not about authorising any course of treatment. I know that she would agree with me on that.
	The provision of treatment take us right back into the Mental Capacity Act itself. The provision of treatment to a person deprived of their liberty hasto be in accordance with the arrangements and safeguards in that legislation. There is no justification to adapt those for people deprived of their liberty. Decision-making about serious medical treatment for these people should be handled as with a group of people who do not have the capacity to consent, not differently. Where the primary reason for deprivation of liberty is to allow treatment to take place, the benefits of being treated would be considered as part of the best-interests assessment. We have to do the best-interests assessment to determine that they can be deprived of their liberty. If serious medical treatment is the reason for depriving someone of their liberty, the best-interests assessor would have to consider that as part of their assessment. This is in addition to, and does not replace, the requirement to comply with the rest of the Mental Capacity Act.
	The requirements in the Mental Capacity Act governing decision-making when a person is not able to consent are robust and practical. We had a lot of scrutiny on this during the passage of the Mental Capacity Act. Where serious medical treatment is proposed, there will be a need, in accordance with the "best interests" provision in the Act, to consult anyone named by the person, engaged in caring for them or interested in their welfare. Any donee of lasting power of attorney or deputy appointed by the court would have to be consulted. If there is nobody of that nature whom it would be appropriate to consult, an independent mental capacity advocate would be appointed to represent the person's interests. Any of these people have the right to seek a second medical opinion regarding serious medical treatment, in the same way that a person could have done had they had capacity.
	The noble Baroness asked whether the IMCAs would do that. I went to the IMCA pilot schemes to see whether it was happening. I can confirm, having looked at it, that IMCAs obtain second opinions where they consider it necessary. The practice that is already under way demonstrates that, where they believe it is appropriate, they do. In addition, you can make an application to the Court of Protection if there is a dispute that the proposed treatment would be in the person's best interests.
	The requirements in the Mental Capacity Act lead to greater involvement in decision-making by the person concerned, ensure that what is decided is genuinely in the person's best interests and that, as far as it can be, the decision made is similar to the one the person would have made if they had had capacity. We have the capacity for second opinions to be obtained by all the people I have mentioned. With the safeguards in the Act, you can only act in the best interests of the person concerned. If the deprivation of liberty were for the purpose of serious medical treatment, then the best-interests assessor would have to determine that it was in the best interests. If all else fails, the Court of Protection can intervene where people believe that serious medical treatment is not in their best interests. I think that my package of safeguards meets what is of genuine concern to the noble Baroness. I hope that she will be able to withdraw her amendment.

Baroness Barker: My Lords, I thank the noble Baroness for that. There is a transitional period to be gone through. The noble Baroness talked about the Court of Protection, which has not until now hadto make decisions about people's welfare. It has primarily made decisions about goods and property. She will understand, then, where some of my concern comes from.
	We are on either side of a fine line. I would prefer that people deprived of liberty had the extra protection afforded to them in my amendment. Clearly, the noble Baroness disagrees. We will continue to keep this matter under scrutiny as the Act is rolled out. I hope that, if we find there is a problem, we can return to it at some stage very quickly. In the mean time I beg leave to withdraw the amendment.

Baroness Ashton of Upholland: My Lords, Amendment No. 81 makes it quite clear that the body monitoring the operation of these safeguards has the authority to require the production of, and to inspect, the records that they need to see in order to fulfil their role. It replaces "medical records" with,
	"records relating to the care or treatment of persons".
	The amendment would put it beyond doubt that the monitoring body has the right to see any relevant records, including care records, care plans and needs assessments. I beg to move.

Baroness Barker: moved Amendment No. 85:
	Before Clause 41 , insert the following new Clause—
	"Code of practice: duty
	After section 118 of the 1983 Act, insert—
	"118A Code of practice: duty
	(1) It is the duty of a person to have regard to the code if he is acting in relation to a patient and is doing so in a professional capacity.
	(2) If it appears to a court or tribunal conducting any criminal or civil proceedings that either—
	(a) a provision in the code, or (b) a failure to comply with the code,
	is relevant to a question arising in the proceedings, the provision of failure must be taken into account in deciding the question.
	(3) The code must be followed unless there is good reason for departing from it in relation to an individual patient and the reasons must be recorded.""

Lord Patel of Bradford: My Lords, I havealready alluded to the Department of Health's quite unsatisfactory approach to the mental health code of practice in our debate on Amendment No. 71A. Therefore, I will make only a brief contribution to this debate.
	Many times in our debates the Minister has responded to calls for statutory measures by telling us of the advantages, particularly in terms of flexibility, of the code of practice. The legendary flexibility of the code is sometimes seen to be just that—a legend. We have had three editions in 20 years, and the Mental Health Act Commission currently produces a guidance note for services outlining the parts of the book that practitioners should annotate to stay on the right side of the past six years' worth of case law.
	More importantly, the code is being promoted by the Government in these debates as a way not only to make services work better but to ensure that they work to what might be regarded as minimum standards of practice and legality under human rights law. We are asked to accept this role for the code, while it is also made explicit that it has no statutory force and may be departed from when any service believes that it has a cogent reason to do so. I echo the sentiments of the noble Baroness, Lady Barker, on cogent reasons and the explanation for that.
	Your Lordships may be surprised to learn that I am quite sympathetic to the argument that the code is the most appropriate means of striking a balance between the need for certainty and predictability in law, and the flexibility that may be required over time or may be required to deal with just those sorts of difficult cases that would make bad law. The code needs to be supported to take this role on board. Departures from it should be exceptional, not routine, and should be justified and recorded. The amendment sets out a modest and reasonable means to make the code work better, and I entirely support it.

Lord Hunt of Kings Heath: My Lords, we come, almost at the end of our deliberations on Report, to a most important matter. As the noble Baroness, Lady Barker, and the noble Lord, Lord Patel, have stated, the inter-relationship between the Act and the code is critical in terms of confidence about how the legislation will be carried out in practice, and the advice and guidance that is given to practitioners in exercising what are often difficult judgments. We need to acknowledge that, legislate as we do, practitioners in the field need clarity, as we have all agreed. Equally, it is also important that professionals have the confidence to exercise their professional judgment and discretion within the parameters of the Act, but with sufficient flexibility too. In a sense, the code enables us to have that discretion and professional judgment but within the clear parameters set down by the legislation. I pay tribute, as I have done before, to the architects of the 1983 legislation. The noble Lord, Lord Patel, referred to the three occasions on which the code has been amended since the 1983 Act came into being. He may say that it should have happened more often, but it clearly shows that the code is not set in stone. We have a mechanism for making adjustments to it in the light of experience. There is also clear parliamentary scrutiny of the code and any changes to be made to it.
	Before responding to a number of points that were made, perhaps I may correct a statement that I made in Committee on 29 January in relation to the code of practice. It may be found at col. 115 of Hansard. In setting out the facts of the judgment in R (on the application of Munjaz) v Mersey Care National Health Service Trust 2005, I stated that the judgment set out the circumstances which could provide cogent reasons for not following the guidance in the code. While I stand by the correctness of what I said, I now understand that the reasons are given in the interpretation of the judgment in the 10th edition of Richard Jones' Mental Health Act Manual, published by Thomson Sweet & Maxwell. I apologise for this misattribution, and wish to put the record straight.
	The amendment would spell out the status of the Mental Health Act code of practice in the legislation. My problem with it is that it would also raise its status far closer to that of directions. It also provides that the reasons for any departure from the code must be recorded.
	The amendment would have the effect of overturning the position established by the House of Lords in the case of Munjaz and would effectively reinstate the Court of Appeal's overruled view on the matter: that the code must be followed and may be departed from only in relation to an individual patient. I accept that noble Lords, in proposing the amendment, wish to ensure that patients are treated effectively and consistently in accordance with the guidance in the code, but this amendment is not the right way of achieving it.
	We are considering this matter carefully and will continue to do so. We understand the advantages of placing the status of the code in legislation. That is why, as part of the promised amendment on principles, I will bring forward at Third Reading a provision setting out the status of the code, but I must make it clear that it will not be the restrictive status proposed in the amendment. Rather, it will be a status consistent with the judgment of the Appellate Committee of this House in Munjaz.
	This is already implicit in the Act. As I said to noble Lords in Committee, we will strengthen the introduction to the code. I readily accept that the current introduction and the draft introductiondo not give sufficient guidance and clarity to professionals on the status of the code of practice. Therefore, in addition to introducing an amendment on the status of the code to be put in the Bill, we will clearly need to look carefully at the drafting of the code of practice in relation to its status. I am happy to share that with noble Lords who have taken part in this debate so that we may have the benefit of their advice and wisdom.
	It is clear that people must understand what the code means in practice and that the people to whomit is addressed must have regard to it. This was confirmed by the Appellate Committee of your Lordships' House. The committee said that it was not sufficient merely to have regard to the code, in the sense of being able to deviate from it as a person sees fit, but, rather, that the people to whom it is addressed must follow its guidance except where they have cogent reasons to depart from it. The dictionary definition of "cogent" is "convincing and compelling". I am not sure how much further I can go on that. It is pretty clear that one has to have a jolly good reason for departing from it. The requirement that cogent reasons must be shown for any departure sets a high standard which is not easily satisfied. A court, in reviewing any departures from the code, should scrutinise the reasons given for the departure with the intensity which the importance and sensitivity of the subject matter require.
	The problem with the amendment is that it would raise the status of the code beyond what is either necessary or sensible. It would have the effect of limiting the flexibility of practitioners to develop local policies to reflect the needs of particular groups of patients. It might run the risk of ossifying professional practice and make it harder for patients to know how they are likely to be treated. I accept that a delicate balance has to be struck between the principles enunciated in the Bill and the Act and the discretion that needs to be given to practitioners in the code of practice. I think that we would all agree that professionals need discretion, but they need to be discreet within the principles enunciated in the Act and in the code of practice. Equally, we do not want to reach a position in which professionals are leftin too much of a straitjacket when using their professional discretion.
	I do not pretend that this is easy or that these matters are easy for a professional on the ground. These are difficult matters and it is a difficult judgment, but we happen to believe—and we believe that we are confirmed by the decision of your Lordships' House in the Appellate Committee—that we have the balance right.
	I also believe that it is very important to recognise the comments made by the noble and learned Lord, Lord Hope, when he discussed the question whether Ashworth was free to depart from the code as a matter of policy, and not just in relation to individual patients or groups of patients. The noble and learned Lord could see no reason why it should not be able to do so,
	"provided of course that it can demonstrate that it had a good reason for doing so".
	He also referred to the,
	"obvious danger that, if the Code could be departed from in the case of individual patients or groups of patients where no written guidance was available, decisions to do this would be open to attack as being arbitrary because their consequences were unregulated and unpredictable".
	There is no question that practitioners should have proper regard to the code of practice and keep records of significant departures from the guidance in the code. However, I worry about the implicationsof the amendment, which could increase the level of bureaucracy requiring practitioners to consider all aspects of the code in respect of each individual patient and recording any reason for departingfrom it.
	We do not favour an attempt to raise the status of the code any further towards that of directions. It is guidance—important guidance, but guidance none the less. Overall, any such change risks reducing the flexibility of the operation of the Act. The current position is that while the code gives guidance, it leaves professional discretion on the interpretation of the statutory provision to the professionals responsible for detaining and treating patients and allows, when there are cogent reasons to do so, the policies which depart from the guidance in the code to be developed in a way which provides transparency and clarity for patients and professionals.
	I understand how important it is to get this right and wish to give as much clarity as possible to noble Lords and practitioners in the field. That is why, while I do not accept the amendment proposed by the noble Baroness, we will propose an amendment at Third Reading, as part of the amendment on principles, which I hope will make it clear that the status of the code as set out in Munjaz is brought into legislation.

Baroness Barker: My Lords, I thank the Minister for his reply. It is not surprising that ever since 1983 the House has been discussing this question and Members on either side of the House—or whichever side they happen to be on at the time—simply disagree. That said, it is helpful that the Minister has alluded to the fact that we wait to see with the amendment. It is a matter of supreme importance, given all that has been said by noble Lords all the way through our discussions—and not simply thosewho wish to defend the rights of patients but those who wish to see the issue clarified for practitioners, who are often highly exposed to criticism about their failures, especially with regard to cases when therehas been a tragedy. Practitioners are having their work scrutinised and their failures put under the microscope.
	For those reasons, it is important that there is consistency and clarity between primary legislation and the code of practice. They were very different documents in draft. I take the point that the code of practice will be substantially revised in light of the discussions that we have in this House and another place, and that this part in particular—that is, the relationship of the principles in the code of practice to the rest of the measures—is one that will definitely be revised.
	There is a distance between us. We do not at the moment have a clear way forward, but we may at Third Reading. However, at this point I thank the Minister for his answer and I beg leave to withdraw the amendment.

Lord Hunt of Kings Heath: moved AmendmentNo. 86:
	Schedule 9 , page 125, line 34, at end insert—
	"(2) The amendments made by sections (Electro-convulsive therapy, etc.) and (Section (Electro-convulsive therapy, etc.): supplemental) do not affect the application of a certificate under subsection (3) of section 58 of the 1983 Act which—
	(a) relates to electro-convulsive therapy (by virtue of regulations under subsection (1)(a) of that section), and (b) is given before the date on which those amendments come into force.
	(3) But any certificate under section 58(3)(b) of the 1983 Act that the patient has not consented to electro-convulsive therapy ceases to apply when those amendments come into force."
	On Question, amendment agreed to.
	Schedule 10 [Repeals and revocations]:

Baroness Barker: moved Amendments Nos. 87to 89:
	Schedule 10 , page 128, line 25, at end insert—
	
		
			 "Health and Social Care (Community Health and Standards) Act 2003 (c. 43) In Schedule 4, paragraph 51." 
		
	
	Schedule 10 , page 128, line 25, at end insert—
	
		
			 "Civil Partnership Act 2004 (c. 33) In Schedule 27, paragraph 86(a)." 
		
	
	Schedule 10 , page 128, line 25, at end insert—
	
		
			 "National Health Service (Consequential Provisions) Act 2006 (c. 43) In Schedule 1, paragraph 63." 
		
	
	On Question, amendments agreed to.

Lord Hunt of Kings Heath: moved AmendmentNo. 95:
	Clause 45, page 38, line 41, at end insert—
	"( ) A statutory instrument containing an order under this section which makes provision by virtue of subsection (4)(b) (including provision within section 46) is subject to annulment in pursuance of a resolution of either House of Parliament."